Prevention Of Corruption Act,1988: Overview

Introduction:-

Corruption is considered to be one of the greatest impediments on the way towards progress for developing country like India. The economic, social and cultural structure of our country is very strong; however, due to the menace called- Corruption, it has been adversely affected and has become defenseless against the forces of anti-social elements.

According to Shri N.Vittal, Former Chief Vigilance Commissioner, the first stage in the dynamics of the rule of law is the framing of effective rules and laws, which are equipped to hinder the ever-rising escalation of the corruption graph. It is in this context that the Prevention of Corruption Act, 1988 becomes highly significant.

Genesis:-

The Prevention of Corruption Act, 1988 (henceforth referred to as PCA) came into force on 9th September, 1988. it incorporated the Prevention of Corruption Act, 1947, the Criminal Law Amendment Act, 1952, and sec. 161 to 165-A of the Indian Penal Code with modifications, enlarged the scope of the definition of the expression 'Public Servant' and amended the Criminal Law Amendment Ordinanc,k1944. The PCA, 1988l, thereby widened the coverage, strengthened the provisions and made them more effective.

The Prevention Of Corruption Act, 1988:-

A] Definitions:

The most important definitions are that of :

- Public duty

- Public servant

1) Public Duty: It means a duty that is dine for the benefit of the State, the public or the

community at a large. It this context, State would mean:

a) A corporation established by or under a Central, Provincial or State Act.

b) An authority or a body owned controlled or aided by the Government company as defined in Sec. 617 of the Companies Act,1956.

2) Public Servant: It is unique term in Anti-corruption law, being the deciding factor at the threshold, of one's liability, depending on his being public servant. The term 'Public Servant' was not defined under the PCA, 1947 and the Act adopted the definition of the term under sec. 21 of the Indian Penal Code. The PCA of 1988 provides a wider definition in the Act itself under clause (c) of sec. 2. the following are the salient

aspects of the new definition:

a) Under cl (c) of Sec.2 of the PC, the emphasis is on public duty and not on the Authority remunerating.

b) The definition is enlarged so as to include the office-bearers of the registered co-operative societies receiving any financial aid from the Government, or from a Government corporation or company, the employees of universities, public service commissions and banks etc.

The following genres of persons fall within the ambit of 'public servant:

a) Any person who is paid by the government or local authority or remunerated by way of fees or commission for the performance of or is in the service of a corporation established by or under a Central, Provincial or State Act, or an authority or body owned or controlled or aided by the Government company as defined in the Companies Act, 1956.

b) Any Judge or any person authorized by a court of justice to perform any duty, in connection with the administration of justice or any arbitrator to whom any cause or matter has been referred for decision or report by a court of justice or report by a court of justice or by a competent public authority.

c) Any person who holds an office result to which he is empowered to prepare, publish maintain or revise an electoral roll or to conduct an election or part of an election, or is authorized or required to perform any public duty.

d) Any person who is the president, secretary or other office bearer of a registered co-operative society engaged in agriculture, industry, trade or banking, receiving or having received any financial aid from the Central or State Government or any authority or body owned, controlled or aided by Government or Government company as defined in Sec. 617 of the Companies Act, 1956.

e) Any person who is a chairman, member or employee of any service commission or Board or a member of any selection committee appointed by such Commission or Board for the conduct of any examination or making any selection on their behalf.

f) Any person who is the Vice-Chancellor or member of any governing body, professor, reader or lecturer of any University and any person whose services have been availed of by a University.

g) An office-bearer or an employee of an educational, scientific, social, cultural or other institution receiving or having received any financial assistance from the Central or State government or local or other public authority.

Explanation 1 states that it is immaterial whether the person falling within the periphery of the above clauses is appointed by Government or not.

Explanation 2 states that a person who is actually holding the

position of the situation of public servant irrespective of the fact that he might not have th3e right to hold that situation shall be deemed to be 'public servant'.

B] Power To Appoint Special Judges:

The Central and the State Government is empowered to appoint Special Judges by placing a Notification in the Official Gazette, to try the following offences:

· Any offence punishable under this Act.

· Any conspiracy to commit or any attempt to commit or any abetment of any of the offences specified under the Act.

The qualification for the Special Judge is that he should be or should have been a Session Judge or an Additional Session Judge or Assistant Session Judge under the Code of Criminal Procedure, 1973

C] Case Trial By Special Judges:

Every offence mentioned in Section 3(1)shall be tried by the Special Judge for the area within which it was committed. When trying any case, a Special Judge may also try any offence other than what is specified in S. 3, which the accused may be, under Cr.P.C. be charged at the same trial. The Special Judge has to hold the trial of an offence on day-to-day basis. However, while complying with foretasted, it is to be seen that the Cr.P.C. is not bifurcated.

D] Power And Functions Of Special Judges:

The following are the powers of the Special Judge:

He may take cognizance of the offences without the accussed being commissioned to him for trial. In trying the accussed persons, shall follow the procedure prescribed by the Cr.P.C. for the trial of warrant cases by Magistrate. he may with a view to obtain the evidence of any person supposed to have been directly or indirectly concered in or privy to an offence, tender pardon to such person provided that he would make full and true disclosure of the whole circumstances within his knowledge or in respect to any person related to the offence.

Except as for S. 2(1), the provisions of Cr.P.C. shall apply to the proceedings before a Special Judge. Hence, the court of the Special Judge shall be deemed to be a Court of Session and the person conducting a prosecution before a Special Judge shall be deemed to be a public prosecutor.

The provisions of secs. 326 and 475of the Cr.P.C. shall apply to the proceedings before a Special Judge and for purpose of the said provisions, a Special Judge shall be deemed to be a magistrate.

A Special Judge may pass a sentence authorized by law for the punishment of the offence of which a person is convicted.

A Special Judge, while trying any offence punishable under the Act, shall exercise all powers and functions exercised by a District Judge under the Criminal Law Amendment Ordinance,1944.

Power to try summarily: Where a Special Judge tries any offence specified in Sec. 3(1), aleged to have been committed by a public servanet in relation to the contravention of any special order referred to in Sec.12-A(1) of the Essential Commodities Act, 1955 or all orders referred to in sub-section (2)(a) of that section then the special judge shall try the offence in a summarily way and the provisions of s. 262 to 265 (both inclusive) of the said code shall as far as may be apply to such trial. Provided that in the case of any conviction in a summary trial under this section this shall be lawful for the Special Judge to pass a sentence of imprisonment for a term not exceeding one year. However, when at the commencement of or in the course of a summary trial it appears to the Special Judge that the nature of the case is such that a sentence of imprisonment for a term exceeding one year may have to be passed or it is undesirable to try the case summarily, the Special judge shall record all order to that effect and thereafter recall any witnesses who may have been examined and proceed to hear and re-hear the case in accordance with the procedure prescribed by the said code for the trial of warrant cases by Magistrates. Moreover, there shall be no appeal by a convicted person in any case tried summarily under this section in which the Special Judge passes a sentence of imprisonment not exceeding one month and of fine not exceeding Rs. 2000.

E] Offences And Penalties:

The following are the offences under the PCA along with their punishments:-

Taking gratification other than legal remuneration in respect of an official act, and if the public servant is found guilty shall be punishable with imprisonment which shall be not less than 6 months but which may extend to 5 years and shall also be liable to fine.

· Taking gratification in order to influence public servant, by corrupt or illegal means, shall be punishable with imprisonment for a term which shall be not less than six months but which may extend to five years and shall also be liable to fine.

· Taking gratification, for exercise of personal influence with public servant shall be punishable with imprisonment for a term which shall be not less than six months but which may extend to five years and shall also be liable to fine.

· Abetment by public servant of offences defined in Section 8 or 9, shall be punishable with imprisonment for a term which shall be not les than six months but which may extend to five years and shall also be liable to fine.

· Public servant obtaining valuable thing without consideration from person concerned in proceeding or business transacted by such public servant, shall be punishable with imprisonment for a term which shall be not les than six months but which may extend to five years and shall also be liable to fine.

· Punishment for abetment of offences defined in Section 7 or 11 shall be punishable with imprisonment for a term which shall be not less that six months but which may extend to five years and shall also be liable to fine.

· Any public servant, who commits criminal misconduct shall be punishable with imprisonment for a term which shall be not less than one year but which may extend to 7 years and shall also be liable to fine.

· Habitual committing of offence under Section 8, 9 and 12 shall be punishable with imprisonment for a term which shall be not less than two years but which may extend to 7 years and shall also be liable to fine.

F] Matters To Be Taken Into Consideration For Fixing Fine:

Where a sentence of fine is imposed under sec. 13(2) and sec. 14, the court while fixing the amount for the same shall consider the amount or te value of the property which the accussed has obtained by committing the offence or where the conviction is for an offence referred to in sec. 13(1)(e), the pecuniary resource or property for which the accussed is unable to account satisfactorily.

Investigation:

Investigation shall be done by a police officer not below the rank of:

a] Incase of Delhi, of an Inspector of Police.

b] In metropolitan areas, of an Assistant Commissioner of Police.

c] Elsewhere, of a Deputy Superintendent of Police or an officer of equivalent rank shall investigate any offence punishable under this Act without the order of a Metropolitan Magistrate or a magistrate of first class, or make any arrest therefore without a warrant.

If a police officer no below the rank of an Inspector of Police is authorized by the State Government in this behalf by general or special order, he may investigate such offence without the order of a Metropolitan Magistrate or Magistrate of First class or make arrest therefor without a warrant.

G] Previous Sanctions:

Previous sanction is required in following cases:

When an offence is punishable under secs. 7, 10, 11, 13 and 15 of the Act.

In case of a person who is employed in connection with the affiars of the Union or State and is not removable from his ofice save by or with the sanction of the Central or State Government as the case may be. In case of any other person, of authority competent to remove him from his office.

Previous sanction is required, if the court feels that a failure has occured in the administration of justice, to do the following:

reversal or alteration by the Court of Appeal of any findings, or any sentence or order passed by a Special Judge. stay the proceedings on the ground of error, omission or irregularity. revision of any interlocutory order passed in inquiry, trial, appeal or proceedings.

 H] Accused: A Competent Witness:

Any person charged with an offence punishable under this Act, shall be a competent witness for the defense and may give evidence on oath in disproof of the charges made against him or any person charged together with him at the same trial:

Provided that-

(a) He shall not be called as a witness except at his own request;

(b) His failure to give evidence shall not be made the subject of any comment by the prosecution or give rise to any presumption against himself or any person charged together with him at the same trial;

(c) He shall not be asked, and if asked shall not be required to answer, any question tending to show that he has committed or been convicted of any offence other than the offence with which he is charged, or is of bad character, unless-

(i) The proof that he has committed or been convicted of such offence is admissible evidence to show that he is guilty of the offence with which he is charged, or

(ii) He has personally or by his pleader asked any question of any witness for the prosecution with a view to establish his own good character, or has given evidence of his good character, or the nature or conduct of the defense is such as to involve amputations on the character of the prosecutor or of any witness for the prosecution, or

(iii) He has given evidence against any other person charged with the same offence.

I] Appeal And Revision:

The High Court has given all power of appeal and revision that are provided to it through Cr.P.C. as if the Court of Special Judge were a Court of Session trying cases within the local limits of the High Court.

Conclusion:-

Corruption is a termite that is eating up the pith of our society it not only hampers the individual's growth but also the collective growth of our Country. Hence, it stands highly imperative to control and then stop this growing menace and in this case the Prevention of Corruption Act,1988 comes to our aid. In fact, the Act has been beautifully drafted, however, a huge power has been vested in the hands of the Central and State Government in form of appointment of Special Judges, providing sanctions etc. Hence the Act would become oblivious if the matter in question is related to Central or State Governments.

The PCA despite of this lacunae is a very powerful Act which needs proper implementation in order to curb corruption from grass root-level.

Protection of Women from Domestic Violence

Violence and domestic abuse are considered a man’s most heinous, intolerable and deleterious weapon and rightfully, violence in a relationship is inhuman behavior in its most pernicious form, which would be anything but acceptable. There had been a significant lacuna in the legal system to accommodate for cases of everyday domestic violence in the lives of women, something that has been restricted to the private domain. But this Act now seeks to eliminate this lacuna and eradicate the evil of domestic violence. Nonetheless, while providing for remedy, the Act has created various openings and prospects for abuse and misuse of this Act.The Domestic Violence Act is the latest mischievous sprite introduced to conform to the concept of protective discrimination by making special provisions for women.

The Act certainly provides for shielding women from any sort of domestic violence in a relationship and the Act has specifies a comprehensive definition of domestic violence. In S.3 of the 2005 Act, domestic violence is defined in terms of mental, physical, sexual, verbal, emotional and economic abuse. But despite of having such a virtuous intention, its ambiguous realization has paved way for a great controversy with feminist groups and men contributingly harping for equality as this Act has the potential of being used by women to harass men. This law was enacted by keeping in view the rights guaranteed under Articles 14,15 and 21 of the Constitution to provide for a remedy under the civil law, which is intended to protect the woman from being victims of domestic violence and to prevent the occurrence of domestic violence in the society . But this Act on the contrary, has provided for an elaborate mechanism for abuse by women and has certainly become a glaring example of inequality. The feminist groups unequivocally and unanimously hail the implementation of the Act while men think of being ransacked of all of their marital rights. The likelihood of it being misused is so immensely incalculable that it has given wakeful nights to men and has left his fate to the whims and fancies of their counterparts. This article will provide and insight into the Act and highlight the draconian nature of the Act through its anomalies and inherent ambiguities.

Legislative History

Before the inception of this Act, there was no specific Act for protecting women from undue discrimination and unjustified violence.

Though the Indian Penal Code had provisions, namely sections 304B and 498A, but they weren’t adequate and satisfactory in checking the atrocities committed against women. Thus, a desperate need was felt for an Act which could specifically cater to this cause and help women attain a dignified status, and henceforth the bill was passed by the legislature in 2005 and it was brought in application in 2006 and was touted by union minister Renuka Choudhary as a the most progressive gift for women.

Inception of the Act

Domestic violence is undoubtedly a human rights issue and serious deterrent to development of a nation. This particular Act has been enacted in keeping with the various guidelines given by several International conventions and declarations. The Vienna Accord of 1994 and the Beijing Declaration and the Platform for Action 1995 have acknowledged this. The United Nations Committee on Convention on Elimination of All Forms of Discrimination Against Women (CEDAW) in its General Recommendation No.XII (1989) has also recommended that State parties should act to protect women against violence of any kind especially that occurring within the family.

The phenomenon of domestic violence is widely prevalent but has remained largely invisible in the public domain. This enactment purported to be an additional violence curbing mechanism to the already existing sections 304B and 498A in IPC, which lay down the punishment for dowry death and cruelty and harassment against a women by her husband or his relatives.

Creditable features of the Act

An important advance made by the Act in understanding the nature of domestic violence has been in the combination of civil and criminal remedies. While civil remedies can be tailored to meet the circumstances of each case, criminal sanctions provide a greater deterrent effect among perpetrators.

The preamble to this Act reads like a definition and covers the entire subject matter of the Act. Apart from stating that the Act is intended to effectively protect the rights of a women and to give them a decent and dignified status, it stresses on the need of an ‘aggrieved women’ to seek immediate relief, compensation and also rehabilitation.

The Act establishes adequate machinery to ensure effective protection. The Act creates an extraordinary post of a Protection officer who is charged with the responsibility of taking expeditious steps for providing timely relief and it also grants authority to the Magistrate to give sufficient relief in the form of maintenance orders, custody orders and compensation. The Act also creates a novel agency called the ‘service providers’ who are entrusted with the job of filing Domestic Incident Reports with the Magistrate. The act by itself does not punish the perpetrator of domestic violence. But if a case discloses any offences punishable under IPC, CRPC or Dowry prohibition Act, the Magistrate may then, frame appropriate charges to either try the case himself or he may commit it to Sessions Court if he may deem fit.

This act contains five chapters and 37 sections. Its main features are firstly that the term 'domestic violence' has been made wide enough to encompass every possibility as it covers all forms of physical, sexual, verbal, emotional and economic abuse that can harm, cause injury to, endanger the health, safety, life, limb or well-being, either mental or physical of the aggrieved person. This is a genuinely wide definition and covers every eventuality. Secondly, the definition of an 'aggrieved' person' is equally wide and covers not just the wife but a woman who is the sexual partner of the male irrespective of whether she is his legal wife or not. The daughter, mother, sister, child (male or female), widowed relative, in fact, any woman residing in the household who is related in some way to the respondent, is also covered by the Act . The respondent under the definition given in the Act is "any male, adult person who is, or has been, in a domestic relationship with the aggrieved person" but so that his mother, sister and other relatives do not go scot free, the case can also be filed against relatives of the husband or male partner.

S.18 of the same chapter allows the magistrate to protect the woman from acts of violence or even "acts that are likely to take place" in the future and can prohibit the respondent from dispossessing the aggrieved person or in any other manner disturbing her possessions, entering the aggrieved person's place of work or, if the aggrieved person is a child, the school. The respondent can also be restrained from attempting to communicate in any form, whatsoever, with the aggrieved person, including personal, oral, written, electronic or telephonic contact". The respondent can even be prohibited from entering the room/area/house that is allotted to her by the court.

The Act allows magistrates to impose monetary relief and monthly payments of maintenance. The respondent can also be made to meet the expenses incurred and losses suffered by the aggrieved person and any child of the aggrieved person as a result of domestic violence and can also cover loss of earnings, medical expenses, loss or damage to property and can also cover the maintenance of the victim and her children . S.22 allows the magistrate to make the respondent pay compensation and damages for injuries including mental torture and emotional distress caused by acts of domestic violence.

The Act provides for penalty up to one-year imprisonment and/or a fine up to Rs. 20,000/- for and offence . The offence is also considered cognizable and non-bailable under Section 31 while Section 32 (2) goes even further and states, "Under the sole testimony of the aggrieved person, the court may conclude that an offence has been committed by the accused"

.

The Act significantly ensures speedy justice as the court has to start proceedings and have the first hearing within 3 days of the complaint being filed in court and every case must be disposed of within a period of sixty days of the first hearing.

 Anomalies in the Act

 Evidence of the Act being unreasonable and excessive is that in relation to the right of residence wherein by including the divorced wives, former girlfriends and former live-in partners in the list of women facing domestic violence, this Act gives enough leeway to women to harass innocent men and turn the heat on their former partners. Now even a traitorous woman cannot be thrown out of house as she can easily threaten her husband or in-laws of false domestic violence charges as the Act expressly mentions that incase of absence of any other evidence, her sole testimony shall be relied upon by the Magistrate in deciding the existence and extent of violence. The Act almost gives a legal sanction to any relationship, which is not at all socially acceptable like the live-in relationship. In addition to this the respondent is totally deprived of his legitimate rights over his property as he cannot alienate or dispose if an order is passed under the Act. On the contrary there is an added liability on his part to arrange for an alternate accommodation or pay the rent for the same.

Another certain home breaking implication of this Act is that as consanguinity is a necessary aspect of marriage, and as matter of fact a ground for separation under the marriage laws, one of the provisions of this Act bars the husbands from even asking, leave apart pressurizing, their wives for sex . Another perturbing feature is that as a protective measure or more so a biased feature conferred by this Act in the form of prohibition of any sort of communication to be made by the husband if there is a prima facie case.An unusual oddity in this enactment is that the Magistrate has been entrusted with unaccountable power as he is invested with the responsibility to take cognizance of the case and also for executing his own orders in favor of the aggrieved women even without being approached for their execution. An additional disturbing aspect is that the Magistrate trying the case is required to evaluate not the individual incidence of violence, but the overall circumstances as well.

The major inappropriate implication would be that it would play down the chances of reconciliation in future. On one hand the Act punishes a man for forcing her wife to leave job while on other it provides maintenance to the very same wife. But the law does not provide for any such remedy to a male in any similar circumstance.

All the provisions of this Act, however, do not serve the purpose of effective implementation as the above examples, sometimes due to a lack of resources or due to extraneous factors. S.12 (4), for example, is a laudable provision, which makes it mandatory for the magistrate to hear a case within three days of the complaint being filed. The idea of prompt relief is carried on in s. 12(5), which directs the magistrate to finish hearing the case within six months of it reaching court. However, the overcrowding of courts makes it difficult to see if they can be practically realized.

A further criticism of the Act is with respect to S.14, which may prescribe counseling for either of the parties, and delay proceedings up to two months. As has been discussed earlier, addressal of domestic violence has always tended to focus on conciliation between the perpetrator and the victim, even within the criminal justice system. This is due to the judicial perceptions regarding the importance of preserving the family unit, even to the jeopardy of a victim of domestic violence. In recognition of this fact, a provision such as S.14 can be counterproductive in two ways. Firstly, it might jeopardize speedy disposal of the case, and secondly, it may also convince the aggrieved to continue in that situation without taking any further action.

The Act makes provision for the appointment of protection officers. Protection officers, as per the Act, are a group of officers whose duty is to assist the aggrieved party with the processing and completion of the domestic violence suit. The institution of protection officers is a useful one, emphasizing the need for societal intervention in order to prevent domestic violence, by directly addressing from an external standpoint the relationship of power and control in an abusive relationship. The problem however lies with the resources required for the creation of such a rung of officers

The Supreme Court verdict

Since the Act is written in a negative language, it is essential to consider the Supreme Court judgement in respect of such statutes. The SC has aptly stated in a recent case that if a provision of law is couched in negative language implying mandatory character then the Courts shall interpret the provision, keeping in view the entire content in which the provision came to be enacted, and shall hold the same to be directory though worded in negative form.

Also in the first case on this Act before the Supreme Court , the Court has admitted and established certain evident ambiguities in the Act.The court in this particular case discussed the scope of sections 2,12,17 and 19. As provided by section 17,the court can now order that she not only reside in the same house but that a part of the house can even be allotted to her for her personal use even if she has no legal claim or share in the property. The Act also ensures speedy justice as the court has to start proceedings and have the first hearing within 3 days of the complaint being filed in court and every case must be disposed of within a period of sixty days of the first hearing.

The facts of the case were that respondent was married to son of Appellants and after their marriage and Respondent and her husband were staying in house owned by husband’s mother. When Husband filed a divorce petition against the Respondent, the Respondent shifted to her parents place. She was prohibited to enter house of Appellants. She filed a Suit for a mandatory injunction to enable her to enter the house. The Trial Court granted temporary injunction restraining Appellants from interfering with right of Respondent to reside. On appeal, Senior Civil Judge dismissed temporary injunction application. The Respondent then filed a petition under Article 227 of the Constitution. The Single Judge held that Respondent was entitled to reside in house, as that was her matrimonial home. Then the husband’s parents appealed and the SC held that the house in question belonged to mother in law of Respondent and not to Respondent’s husband and Respondent could not claim any right in said house. The Court also redefined the scope of various provisions relating to ‘shared household’ and compensation in the form of residential accommodation by stating that "Wife is only entitled to claim a right to residence in a shared household, and a ‘shared household’ would only mean house belonging to or taken on rent by husband, or house which belongs to joint family of which husband is a member." The Court while deciding on the issue of alternative accommodation laid down that in regards to “Alternative accommodation under Section 19 (1)(f) of the Protection of Women from Domestic Violence Act, 2005, claim for alternative accommodation can only be made against husband and not against in-laws or other relatives.”

Conclusion

The Act presently is heavily in favor of women. Chances of it being misused and scandalously abused are enormous. It can therefore, be well stated here, that this act could become a pawn in the hands of the “so called aggrieved” who can easily manipulate it for her advantage which can be well supported by these statistical researches. This Act should have ideally included stringent penal provisions for curtailing the instances of abuse and mishandling, but herein, instead various opportunities have been made available which can ultimately lead to its grave misuse and can thus act as a catalyst for breaking homes. Thus, this Act does not contain any provisions for creating awareness or for strengthening and preserving family as an institution or even providing chances for reconciliation or even scope for improvement to “the husband”. The main beneficiaries of this Act will obviously be women of propertied upper class. But there is no doubt that given the hypocritical, patriarchal and insensitive nature of the society, this Act would definitely be instrumental in putting an end to all the degradation and brutality meted out to women.

Lok Adalat and Its Significance

Camps of Lok Adalat were started initially in Gujarat in March 1982 and now it has been extended throughout the Country. The evolution of this movement was a part of the strategy to relieve heavy burden on the Courts with pending cases. The reason to create such camps were only the pending cases and to give relief to the litigants who were in a queue to get justice.

Seekers of justice are in millions and it is becoming rather difficult for the Courts to cope up with the ever-increasing cases with the present infrastructure and manpower. Courts are clogged with cases. There is serious problem of overcrowding of dockets. Because of the ever-increasing number of cases the Court system is under great pressure. Therefore, if there was at the threshold a permanent mechanism or machinery to settle the matters at a pre-trial stage, many matters would not find their way to the Courts. Similarly, if there are permanent forums to which Courts may refer cases, the load of cases could be taken off the Courts.In order to reduce the heavy demand on Court time, cases must be resolved by resorting to 'Alternative Dispute Resolution' Methods before they enter the portals of Court. Here comes the significance of Lok Adalat which has showed its significance by settling huge number of Third Party claims referred by Motor Accident Claim Tribunal (MACT). Except matters relating to offences, which are not compoundable, a Lok Adalat has jurisdiction to deal with all matters. Matters pending or at pre-trial stage, provided a reference is made to it by a court or by the concerned authority or committee, when the dispute is at a pre-trial stage and not before a Court of Law it can be referred to Lok Adalat.

Parliament enacted the Legal Services Authorities Act 1987, and one of the aims for the enactment of this Act was to organize Lok Adalat to secure that the operation of legal system promotes justice on the basis of an equal opportunity. The Act gives statutory recognition to the resolution of disputes by compromise and settlement by the Lok Adalats. The concept has been gathered from system of Panchayats, which has roots in the history, and culture of this Country. It has a native flavor known to the people. The provisions of the Act based on indigenous concept are meant to supplement the Court system. They will go a long way in resolving the disputes at almost no cost to the litigants and with minimum delay. At the same time, the Act is not meant to replace and supplants the Court system. The Act is a legislative attempt to decongest the Courts from heavy burden of cases. There is a need for decentralization of justice.

Since April 1985, Lok Adalats have been exclusively organized for settlement of motor third party claims. Although the concept of Lok Adalat was very much vogue since early years. This form was made available for settlement of Motor Third Party claims under the initiative of former Chief Justice of India, Shir P.N.Bhagwati, since then number of lok Adalats have been organized throughout the Country through this forum to the satisfaction of the claimants. It is expected to gather further momentum for settlement of these claims through this medium as both claimants do and the Insurance Company get benefit out of it.

That is the reason why Insurance Companies are interested in settling Third Party claims by Lok Adalats. The increase in cases in Motor Accident Claim Tribunal (MACT) and backlog of pending cases pressed the insurer and the judicial system to think about the quick disposal oriented system like Lok Adalat/Conciliatory forums should be utilized to optimum level.

Lok Adalat now is playing sole role in solving disputes and settling MACT cases. It has become a Dispute Management Institution. It is an informal system of dispute resolution. This is the expeditious method to settle large number of MACT claims. It is the best provisions by the effort of judiciary. Disposal through Lok Adalat is the only panacea for controlling the arrears of cases. Insurance Company can save additional interest. This is the simplest method, which is devoid of procedural wrangles of regular trial. According to Legal Services Authorities (Amendment) Act 1994 effective from 09-11-1995 has since been passed, Lok Adalat settlement is no longer a voluntary concept. By this Act Lok Adalat has got statutory character and has been legally recognized. Certain salient features of the Act are enumerated below:

Section 19

1 Central, State, District and Taluka legal Services Authority has been created who are responsible for organizing Lok Adalats at such intervals and place.

2 Conciliators for Lok Adalat comprise the following: -

A A sitting or retired judicial officer.

B other persons of repute as may be prescribed by the State Government in consultation with the Chief Justice of High Court.

Section 20: Reference of Cases

Cases can be referred for consideration of Lok Adalat as under:

1 By consent of both the parties to the disputes.

2 One of the parties makes an application for refrence.

3 Where the Court is satisfied that the matter is an appropriate one to be taken cognizance of by the Lok Adalat.

4 Compromise settlement shall be guided by the principles of justice, equity, fairplay and other legal principles.

5 Where no compromise has been arrived at through conciliation, the matter shall be returned to the concerned court for disposal in accordance with Law.

Section 21

After the agreement is arrived by the consent of the parties, award is passed by the conciliators. The matter need not be reffered to the concerned Court for consent decree.

The Act provisions envisages as under:

1 Every award of Lok Adalat shall be deemed as decree of Civil Court.

2 Every award made by the Lok Adalat shall be final and binding on all the parties to the dispute.

3 No appeal shall lie from the award of the Lok Adalat.

Section 22

Every proceedings of the Lok Adalat shall be deemed to be judicial proceedings for the purpose of

1 Summoning of Witnesses.

2 Discovery of documents.

3 Reception of evidences.

4 Requistioning of Public record.

Hon’ble Delhi High Court has given a landmark decision highlighting the significance of Lok Adalat movement. It has far reaching ramifications.

Landmark Decision of Hon’ble Delhi High Court AIR 1999 Delhi Page-88

Abdul Hasan and National Legal Services Authority-Petitioner Vs. Delhi Vidyut Board and others- Facts of the Case - The petitioner filed a writ petition before Delhi High Court for restoration of electricity at his premises, which was disconnected by the Delhi Vidyut Board (DVB) on account of non-payment of Bill. Interalia, the grievances of the citizens were not only confined to the DVB but also directed against the State agencies like DDA, Municipal Corporation, MTNL, GIC and other bodies, Court notices were directed to be issued to NALSA and Delhi State Legal Service Authority. Judgment Held- His lordship Hon’ble Mr. Justice Anil Dev Singh passed the order giving directions for setting up of permanent Lok Adalats. The scholarly observations of His Lordship Mr Justice Anil Dev Singh deserve special commendations and are worthy of note. It will be profitable to reproduce the important text and abstract from this judgment, which should be an eye opener for all of us. It should also steer the conscience of all, as there is an increasing need to make Lok Adalat movement a permanent feature.

Article 39 A of the Constitution of India provides for equal justice and free legal aid. It is, therefore clear that the State has been ordained to secure a legal system, which promotes justice on the basis of equal opportunity. The language of Article-39 A is couched in mandatory terms. This is made more than clear by the use of the twice-occurring word “shall” in Art-39 A. It is emphasized that the legal system should be able to deliver justice expeditiously on the basis of equal opportunity and provide free legal aid to secure that opportunities for securing justice are not denied to any citizens by reasons of economic or other disabilities. It was in this context that the parliament enacted the Legal Services Authority Act-1987.

The need of the hour is frantically beckoning for setting up Lok-Adalats on permanent and continuous basis. What we do today will shape our tomorrow. Lok Adalat is between an ever-burdened Court System crushing the choice under its own weight and alternative dispute resolution machinery including an inexpensive and quick dispensation of justice. The Lok Adalat and alternative dispute resolution experiment must succeed otherwise the consequence for an over burdened court system would be disastrous. The system needs to inhale the life giving oxygen of justice through the note. If we closely scrutinize the contents of the decision of Delhi High Court, there has been an alarming situation of docket-explosion and the ultimately remedy is the disposal of cases through the mechanism of Lok Adalat.

The Dowry Prohibition Act-1961- An Overview

The evil of dowry system was assuming enormous proportions and the minds of right thinking persons both outside and inside the State Legislatures and the Parliament were shattered. The matter was raised in the Parliament in very first session of the Lok Sabha. Many proposals for restraining dowry were placed in the Parliament in the form of Private Members Bills. During the course of discussions on a non-official Bill in the Lok Sabha in 1953, the then Minister of Law gave an assurance to the House that a bill on the subject would be prepared in consultation with the State Governments.

In pursuance of the assurance, a Bill was subsequently submitted for consideration of the Cabinet. The Cabinet then decided that the proposal might be held in abeyance till the enactment of the Hindu Succession Act. After the enactment of the Hindu Succession Act in 1956, the Government felt that a separate legislation to prohibit dowry was not a matter of urgency. As the problem continued to increase the issue was against and again agitated in the Parliament as well as in State Legislatures. On account of pressure both at political and social levels, the Government finally decided to process the legislation. On 24th April, 1959 the dowry Prohibition Bill, 1959 was introduced in the Lok Sabha. After some discussion, the Bill was referred to a Joint Committee of both the Houses of Parliament. The Joint Committee presented its report with some amendments in the Bill. Both the Houses of Parliament did not agree with the amendments as reported by the Joint Committee and ultimately the Bill was considered at the Joint Sittings of both the Houses of Parliament held on 6th and 9th May,1961.

ACT 28 OF 1961 The Dowry Prohibition Bill was passed in the Joint Sittings of both the Houses of Parliament and it became an Act - The Dowry Prohibition Act, 1961 (28 of 1961) and it received the assent of the President on 20th May, 1961.

1. Short tile, extent and commencement -
(1) This Act may be called the Dowry Prohibition Act, 1961.

(2) It extends to the whole of India except the State of Jammu and Kashmir.

(3) It shall come into force on such date (Note: It came into force on 1st July, 1961) as the Central Government may, by notification in the Official Gazette, appoint.

2. Definition of ‘dowry’.-
In this Act, "dowry" means any property or valuable security given or agreed to be given either directly or indirectly.

(a) By one party to a marriage to the other party to the marriage, or

(b) By the parent of either party to a marriage or by any other person, , to either party to the marriage or to any other person,

At or before [(Note: Subs. by Act 43 of 1986, sec.2) or any time after the marriage] [(Note: Subs. by Act 63 of 1984, sec.2) in connection with the marriage of the said parties, but does not include] dower or mahr in the case or persons to whom the Muslim Personal Law (Shariat) applied.

(Note: Explanation I omitted by act 63 of 1984, sec.2).

Explanation II- The expression "valuable security" has the same meaning as in section 30 of the Indian Penal Code (45 of 1860).

3. Penalty for giving or taking dowry.-
[(Note: Section 3 re-numbered as sub-section (1) thereof by Act No.63 of 1984, sec.3) (1)] If any person, after the commencement of this Act, gives or takes or abets the giving or taking of dowry, he shall be punishable with imprisonment for a term which shall not be less than [(Note: Subs. by Act 43 of 1986, Sec.3) five years, and with fine which shall not be less than fifteen thousand rupees or the amount of the value of such dowry, whichever is more:] Provided that the Court may, for a adequate and special reasons to be recorded in he judgment, impose a sentence of imprisonment of a term of less than [(Note: Subs. by Act 43 of 1986, Sec.3) five years.]

(2) [(Note: Ins. by Act 63 of 1984, sec.3) Nothing is sub section (1) shall apply to, or in relation to, -

(a) Presents which are given at the time of a marriage to the bride (without any demand having been made in that behalf).

(b) Presents which are given at the time of a marriage to the bridegroom (without any demand having been made in that behalf).

Provided that such presents are entered in a list maintained in accordance with the rules made under this Act.

Provided further that where such presents are made by or on behalf of the bride or any person related to the bride, such presents are of a customary nature and the value thereof is not excessive having regard to the financial status of the person by whom, or on whose behalf, such presents are given.

4.  Penalty for demanding dowry.-
If any person demands, directly or indirectly, from the parents or other relatives or guardian of a bride or bridegroom, as the case may be, any dowry, he shall be punishable with imprisonment for a term which shall not be less than six months, but which may extend to two years and with fine which may extend to ten thousand rupees. Provided that the Court may, for a adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment for a term of less than six months.]

4A. Ban on advertisement .- If any person -

(a) Offers through any advertisement in any newspaper, periodical, journal or through any other media, any share in his property or of any money or both as a share in any business or other interest as consideration fore the marriage of his son or daughter or any other relatives.

(b) Prints or published or circulates any advertisement referred to in clause (a), he shall be punishable with imprisonment for a term which shall not be less than six months, but which may extend to five years, or with fine which may extend to fifteen thousand rupees.

Provided that the Court may, for adequate and special reasons to be recorded in the judgment, impose a sentence of imprisonment for a term of less than six months.

5. Agreement for giving or taking dowry to be void - Any agreement for the giving or taking of dowry shall be void.

6. Dowry to be for the benefit of the wife or her heirs –

(1) Where any dowry is received by any person other than the woman in connection with whose marriage it is given, that person shall transfer it to the woman-

(a) If the dowry was received before marriage, within [(Note: Subs. by Act 63 of 1984, sec.5 for "one year") three months] after the date of marriage, or

(b) If the dowry was received at the time of or after marriage, within [(Note: Subs. by Act 63 of 1984, sec.5 for "one year") three months] after the date of its receipt, or

(c) If the dowry was received when the woman was a minor, within [(Note: Subs. by Act 63 of 1984, sec.5 for "one year") three months] after she has attained the age of eighteen years. And pending such transfer, shall hold it in trust for the benefit of the woman.

(2) [(Note: Subs. by Act 63 of 1984, sec.5) If any person fails to transfer any property as required by sub section (1) within the time limit specified therefore, [(Note: Ins. by Act 43 of 1986, sec.5) or as required by sub section (3)] he shall be punishable with imprisonment for a term which shall not be less than six months, but which may extended to two years or with fine [(Note: Subs. by Act 43 of 1986, sec.5) which shall not be less than five thousand rupees, but which may extend to ten thousand rupees] or with both.

(3) Where the woman entitled to any property under sub section (1) dies before receiving it, the heirs of the woman shall be entitled to claim it from the person holding it for the time being.

[(Note: Ins. by Act 43 of 1986, sec.5) Provided that where such woman dies within seven years of her marriage, otherwise than due to natural causes, such property shall,-

(a) If she has no children, be transferred to her parents, or

(b) If she has children, be transferred to such children and pending such transfer, be held intrust for such children.

(3A) [(Note: Subs. by Act 63 of 1984, sec.5) Where a person convicted under sub section (2) for failure to transfer any property as required by sub section (1) [(Note: Ins. by Act 43 of 1986, sec.5) or such section (3)] has not, before his conviction under that sub section, transferred such property to the woman entitled thereto or, as the case may be [(Note: Subs. by Act 63 of 1984, sec.5 for "one year") her heirs, parents or children] the court shall, in addition to awarding punishment under that sub section, direct , by order in writing that such person shall transfer the property to such woman or, as the case may be, [(Note: Subs. by Act 63 of 1984, sec.5 for "one year") her heirs, parents or children] within such period as may be specified in the order, and if such person fails to comply with the direction within the period so specified, an amount equal to the value of the property may be recovered from him as if it were a fine imposed by such court and paid to such woman or, as the case may be, [(Note: Subs. by Act 63 of 1984, sec.5 for "one year") her heirs, parents or children.]

(4) Nothing contained in this section shall effect the provisions of section 3 or section 4.

7. Cognizance of offences –

(1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974),-

(a) No court inferior to that of a Metropolitan Magistrate or a Judicial Magistrate of the first class shall try any offence under this Act.

(b) No court shall take cognizance of an offence under this Act except upon-

(i) Its own knowledge or a police report of the facts which constitute such offence, or

(ii) A complaint by the person aggrieved by the offence or a parent or other relative of such person, or by nay recognized welfare institution or organisation.

(c) It shall be lawful for a Metropolitan Magistrate or a Judicial Magistrate of the first class to pass any sentence authorised by this Act on any person convicted of an offence under this Act.

Explanation - For the purpose of this sub section, "recognized welfare institution or organisation" means a social welfare institution or organisation recognized in this behalf by the Central or State Government.

(2) Nothing in Chapter XXXVI of the Code of Criminal Procedure, 1973 (2 of 1974) shall apply to any offence punishable under this Act.

(3) [(Note: Ins. by Act 43 of 1986, sec.6) Notwithstanding anything contained in any law for the time being in force, a statement made by the person aggrieved by the offence shall not subject such person to a prosecution under this Act.]

8A. Burden of proof in certain cases -

(1) Where any person is prosecuted for taking or betting the taking of any dowry under Section 3, or the demanding of dowry under section 4, the burden of providing that he had not committed an offence under these section shall be on him.

8B. Dowry Prohibition Officers -

(1) The State Government may appoint as many Dowry Prohibition Officers as it thinks fit and specify the areas in respect of which they shall exercise their jurisdiction and powers under this Act.

(2) Every Dowry Prohibition Officer shall exercise and perform the following powers and functions, namely:-

(a) To see that the provisions of this Act are complied with,

(b) To prevent, as far as possible, the taking or abetting the taking of, or the demanding of, dowry,

(c) To collect such evidences as may be necessary for the prosecution of persons committing offences under the Act, and

(d) To perform such additional functions as may be assigned to him by the State Government, or as may be specified in the rule made under this Act.

(3) The State Government may, by notification in the Official Gazette, confer such powers of a police officer as may be specified in the notification on the Dowry Prohibition Officer who shall exercise such powers subject to such limitations and conditions as may be specified by rules made under this Act.

(4) The State Government may, for the purpose of advising and assisting Dowry Prohibition Officers in the efficient performance of their functions under this Act, appoint an Advisory Board consisting of not more than five social welfare workers (out of whom at least two shall be women) form the area in respect of which such Dowry Prohibition Officer exercise jurisdiction under sub section (1).

9. Power to make rules -

(1) The Central Government may, by notification in the Official Gazette, make rules for carrying out the purpose of this Act.

(2) [(Note: Ins. by Act 63 of 1984, sec.8) In particular, and without prejudice to the generality of the foregoing power, such rules may provide for -

(a) The form and manner in which, and the person by whom, any list of presents referred to in such section (2) of section 3 shall be maintained and all other matters connected therewith, and

(b) The better co-ordination of policy and action with respect to the administration of this Act.

[(Note: Sub-section (2) renumbered as sub-section 3 thereof by Act 63 of 1984, sec.8) (3)]

Every rule made under this section shall be laid as soon as may be after it is made before each House of Parliament while it is in session for a total period of thirty days which may be comprised in one session or in two successive sessions, and if before the expiry of the session in which it is so laid or the session immediately following both Houses agree in making any modification in the rule or both Houses agree that the rule should not be made, the rule shall thereafter have effect only in such modified form or be of no effect, as the case may be, so however that any such modification or annulment shall be without prejudice to the validity of anything previously done under that rule. 10.

Power of State Government to make rules -

(1) The State Government may, by notification in the Official Gazette, make rules for carrying out the purposes of this Act.

(2) In particular, and without prejudice to the generality of the foregoing power, such rules may provide for all or any of the following matters, namely :-

(a) The additional functions to be performed by the Dowry Prohibition Officers under sub section (2) of Section 8B.

(b) Limitations and conditions subject to which a Dowry Prohibition Officer may exercise his functions under sub section (3) of section 8B.

(3) Every rule made by the State Government under this section shall be laid as soon as may be after it is made before the State Legislature.

Rape and Indian Laws

Rape means an unlawful intercourse done by a man with a woman without her valid Consent-Sec.375,IPC

 The dictionary meaning of word rape is “the ravishing or violation of a woman.” The rape victim i.e. a woman as woman cannot commit rape due to biological reasons. She is traumatized after the event; it is very difficult for a woman to come out of this trauma. Rape in India is a cognizable offence. There are many provisions in various Acts. The word rape is legally defined u/s 375 of Indian Penal Code, 1860. It defines the rape and also prescribes its punishment. Whenever a man penetrates or does sexual intercourse with a woman without her consent or will it amounts to rape.

Penetration here means that only a slightest of the touch of penis to vagina amounts to rape, unruptured hymen of woman does not prove that rape was not committed. There are exceptions to it also i.e. when a man does sexual intercourse with his wife who is above 15 years of age. The rape law under Indian Penal Code had gone through a lot of amendments. In 1983, amendment was made and S. 376(2) i.e. Custodial rape, S. 376(A) i.e. marital rape & S. 376(B to D) i.e. Sexual Intercourse not amounting to rape were added.

U/s 228A IPC, No person can disclose the name of the rape victim and if anybody discloses the name, he shall be punished with either description for a term which may extend to two years and shall also be liable for fine.

U/s 114-A of Indian Evidence Act, presumption can be made as to the absence of consent in certain prosecutions for rape.

U/s 53(1) of Code of Criminal Procedure, When a person is arrested on a charge of committing an offence of such a nature and alleged to have been committed under such circumstances that there are reasonable grounds for believing that an examination of his person will afford evidence as to the commission of an offence, it shall be lawful for a registered medical practitioner, acting at the request of a police officer not below the rank of sub-inspector, and for any person acting in good faith in his aid and under his direction, to make such an examination of the person arrested as is reasonably necessary in order to ascertain the facts which may afford such evidence, and to use such force as is reasonably necessary for that purpose.

U/s 164A of Code of Criminal Procedure, provisions for medical examination of rape victim are given.

U/s 327(2) of Code of Criminal Procedure, there should be in camera trial for all rape victims.

The Judiciary in India is burdened with a lot of work and therefore judgment of the rape cases comes very late. Sometimes it comes so late that either of the parties had died. So, there should be speedy trials in rape cases so that the victim gets justice as it is rightly stated that “Justice delayed is justice denied.”

As every coin has two sides, in this case also there are two sides. Many a times girls also make fake complaints just to ruin the life of a boy, sometimes the parents of girl compels her to file a complaint against the boy she loves, as the law shows a lot of sympathy towards the girl. The accused is left with nothing, when the complaint is made his life is ruined irrespective of the fact that he was proved guilty or not. So, in my views there must come an amendment which equalizes the burden of proof on both the sides and the law works smoothly. It should be such that is contradicts the statement i.e. “Law is there for vigilant.”

AMENDMENTS TO RAPE LAWS IN 2013

Section 370 IPC has been substituted with new sections, 370 and 370A which deals with trafficking of person for exploitation. If a person (a) recruits, (b) transports, (c) harbours, (d) transfers, or (e) receives, a person or persons, by using threats, or force, or coercion, or abduction, or fraud, or deception, or by abuse of power, or inducement for exploitation including prostitution, slavery, forced organ removal, etc. will be punished with imprisonment ranging from at least 7 years to imprisonment for the remainder of that person’s natural life depending on the number or category of persons trafficked.Employment of a trafficked person will attract penal provision as well.

The most important change that has been made is the change in definition of rape under IPC. The word rape has been replaced with sexual assault in Section 375, and have added penetrations other than penile penetration an offence. The definition is broadly worded and gender neutral in some aspect, with acts like penetration of penis, or any object or any part of body to any extent, into the vagina, mouth, urethra or anus of another person or making another person do so, apply of mouth or touching private parts constitutes the offence of sexual assault. The section has also clarified that penetration means "penetration to any extent", and lack of physical resistance is immaterial for constituting an offence. Except in certain aggravated situation the punishment will be imprisonment not less than seven years but which may extend to imprisonment for life, and shall also be liable to fine. In aggravated situations, punishment will be rigorous imprisonment for a term which shall not be less than ten years but which may extend to imprisonment for life, and shall also be liable to fine.

A new section, 376A has been added which states that if a person committing the offence of sexual assault, "inflicts an injury which causes the death of the person or causes the person to be in a persistent vegetative state, shall be punished with rigorous imprisonment for a term which shall not be less than twenty years, but which may extend to imprisonment for life, which shall mean the remainder of that person’s natural life, or with death."

 In case of "gang rape", persons involved regardless of their gender shall be punished with rigorous imprisonment for a term which shall not be less than twenty years, but which may extend to life and shall pay compensation to the victim which shall be reasonable to meet the medical expenses and rehabilitation of the victim.

The age of consent in India has been increased to 18 years, which means any sexual activity irrespective of presence of consent with a woman below the age of 18 will constitute statutory rape.

Certain changes has been introduced in the CrPC and Evidence Act, like the recording of statement of the victim, more friendly and easy, character of the victim is irrelevant, presumption of no consent where sexual intercourse is proved and the victim states in the court that there has been no consent, etc.

Sexual offence act, 2003 states as follows:-

Rape

(1) A person (A) commits an offence if-

(a) he intentionally penetrates the vagina, anus or mouth of another person (B) with his penis,

(b) B does not consent to the penetration, and

(c) A does not reasonably believe that B consents.

(2) Whether a belief is reasonable is to be determined having regard to all the circumstances, including any steps A has taken to ascertain whether B consents .

With compare to this law, law of India under penal code not cover the penetration of mouth and if such happened then that not amount to rape under our present law above all in India it is observe by our Hon’ble courts that in case of rape if any woman help to commit such rape she will be not charge for the offence of rape as she help to commit the rape but in England it happens and their punishment are also more than us so any one before committing this must think and in the mind of people there is some fear about law and it’s punishment.

Like every other country, laws relating to rape do exist in India. However, justice is rarely achieved. In most cases, rape victims themselves hesitate to make a complaint due to the stigma attached to it in society. Sometimes, even if a complaint is made, the offender gets away due to wide spread ignorance of the laws relating to the offense.

A man is said to commit “rape” if he has sexual intercourse with a woman under circumstances falling under any of the six following descriptions :-

1. Against her will.

2. Without her consent.

3. With her consent, when her consent has been obtained by putting her or any person in whom she is interested in fear of death or of hurt.

4. With her consent, when the man knows that he is not her husband, and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married.

5. With her consent, when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent.

6. With or without her consent, when she is under sixteen years of age.

Explanation: Penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape.

Exception: Sexual intercourse by a man with his own wife, the wife not being under fifteen years of age, is not rape.

 SPECIAL CASES OF RAPE

Rape knowing the woman to be pregnant , gang rape, and custodial rape definitions, Specific (and sometimes increased) Punishment in some of these cases Shift of burden of proof to defendant from the victim in some of these cases. (Section 376 subsection 2 (a-g) of Indian Penal Code)

1)Rape of a woman who is under twelve years of age [Sec.376 (2) (f)]

Punishment

Rigorous imprisonment for a term which shall not be less than ten years but which may be for life and shall also be liable to fine: Provided that the court may, for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment of either description for a term of less than ten years.

Issues

Unfortunately other than the increased minimum punishment from 7 years to 10 years, no other special concession is given to Child Rape given the increased trauma for the girl. Since even the minimum punishment can be reduced by the judges, much needs to be done in this area.

2) Rape of a woman, knowing her to be pregnant (Sec.376 Subsection 2- e)

Punishment

Rigorous imprisonment for a term which shall not be less than ten years but which may be for life and shall also be liable to fine: Provided that the court may, for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment of either description for a term of less than ten years.

Exemption from burden of proof if the victim states in court that she did not consent, then the court shall presume that she did not consent and the burden of proving consent shall shift to the accused

3). Gang Rape ( Sec.376 Subsection 2- g)

“Where a woman is raped by one or more in a group of persons acting in furtherance of their common intention, each of the persons shall be deemed to have committed gang rape within the meaning of this sub-section. ”

Thus even if five men force a women into having sexual intercourse with only one of them, the remaining four will also be considered to have committed rape under this law. Punishment

Rigorous imprisonment for a term which shall not be less than ten years but which may be for life and shall also be liable to fine: Provided that the court may, for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment of either description for a term of less than ten years.

Exemption from burden of proof :

If the victim states in court that she did not consent, then the court shall presume that she did not consent and the burden of proving consent shall shift to the accused.

4). Custodial Rape: (Sec.376 Subsection 2 a, b, c , d):

Rape committed on a woman in their or their subordinate’s custody by

a) police officer

(i) within the limits of the police station to which he is appointed; or

(ii) in the premises of any station house whether or not situated in the police station to, which he is appointed; or

(iii) on a woman in his custody or in the custody of a police officer subordinate to him;

b) public servant

c) management or the staff of a jail, remand home or other place of custody or a women’s or children’s institution

d) management or on the staff of a hospital

Punishment

Rigorous imprisonment for a term which shall not be less than ten years but which may be for life and shall also be liable to fine .

Case Laws:

In State of Punjab vs. Gurmit Singh , the Supreme Court has advised the lower judiciary, that even if the victim girl is shown to be habituated to sex, the Court should not describe her to be of loose character.

The Supreme Court has in the case of State of Maharashtra Vs. Madhukar N. Mardikar , held that “the unchastity of a woman does not make her open to any and every person to violate her person as and when he wishes. She is entitled to protect her person if there is an attempt to violate her person against her wish. She is equally entitled to the protection of law. Therefore merely because she is of easy virtue, her evidence cannot be thrown overboard.”

In Delhi Domestic Working Women v. Union of India , the Apex Court laid down the following broad guidelines:

• The complainants of sexual assault cases should be provided with legal representation i.e. they should be provided an advocate who could help her properly.

• Legal assistance will have to be provided at the police station since victim of sexual assault might very well be in a distressed state upon arrival at the police station and guidance of a lawyer at that stage is very necessary.

• The police should be under duty to inform the victim of her right to representation before any questions were asked of her and that the police report should state that the victim was so informed.

• A list of advocates who deal in these cases should be kept at the police station for victims who did not have a particular lawyer in mind or whose own lawyer was unavailable.

• In all rape trials anonymity of victim must be maintained, as far as necessary.

• A “Criminal Injuries Compensation Board” should be established.

• Interim compensation should be given to rape victim even if the case is still going on in the court.

• Medical help should be provided and woman should be allowed to abort the child if she becomes pregnant due to the incidence.

• Compensation should be provided to rape victim to rehabilitate herself.

The National Commission for Women has identified nine areas for review . These are:

1. Review of the definition of rape

2. Reduction of procedural delays

3.Uniformity in age of consent under sections 375 and 376 of Indian Penal Code, 1860, to bring it in conformity with the Child Marriage Restraint Act, 1869

4. Whether exception to section 375 should be deleted

5. Whether section 155 clause 4 of the Indian Evidence Act 1872 needs to be amended or deleted.

6. Whether statutory provisions are needed for compensation to the rape victim

7. Whether provisions for counseling legal aid should be made mandatory under laws.

8. Death penalty to persons convicted for rape

9. Recommendation for enhancement of punishment in cases where the accused, with the knowledge of suffering from HIV infection/AIDS, infects the victim as a result of rape.

Conclusion:

The courts and the legislature consistently making  changes to make Rape laws effective. The sentence of punishment, which normally ranges from one to ten years, where on an average most convicts get away with three to four years of rigorous imprisonment with a very small fine; and in some cases, where the accused is resourceful or influential- may even expiate by paying huge amounts of money and get exculpated. The courts have to comprehend the fact that these conscienceless criminals- who sometimes even beat and torture their victims- who even include small children, are not going to be deterred or ennobled by such a small time of imprisonment. Therefore, in the best interest of justice and the society, these criminals should be sentenced to life imprisonment.