India, a Welfare State, has been enjoined upon the responsibility under the Constitution to promote the welfare of the people by securing and protecting as effectively as it may a social order in which justice, social, economic and political, shall inform all the institutions of the national life. The State is obligated to regard the raising of the level of nutrition and the standard of living of its people and the improvement of public health as among its primary duties. One of the most deserving segments of population which need special attention is of “Senior Citizen”.
As per data available on the Government websites, in 2011 Census there were approx.104 million senior citizen in India (53 million females and 51 million males). According to an estimate this number must have grown to approx. 150 million which is about 9% of the total population. About 70% of the elderly population resides in rural areas whereas 30% resides in urban areas. The life expectancy is between age group 65 to 70 exception being certain States like Kerala and Punjab where it is little more. During 2013 the age specific death rate per 1000 population for the age group 60 – 64 years was 19.7 for rural areas and 15.0 for urban areas. The old – age dependency ratio climbed from 10.9% in 1961 to 14.2% in 2011 for India as a whole. In rural areas, 66% of elderly men and 28% of elderly women were working, while in urban areas only 46% of elderly men and about 11% of elderly women were working. The percent of literates among elderly persons increased from 27% in 1991 to 44% in 2011.The literacy rates among elderly females (28%) is less than half of the literacy rate among elderly males (59%).Most common disability among the aged persons was locomotor disability and visual disability as per Census 2011. In the age – group of 60 – 64 years, 76% persons were married while 22% were widowed. Remaining 2% were either never married or divorced.
Prevailing statutory provisions were highly inadequate. Section 20 of the Hindu Adoption & Maintenance Act, 1956 makes a provision for maintenance of children and aged parents. The provision makes it mandatory for a Hindu, during his or her lifetime, to maintain his or her legitimate or illegitimate children and his or her aged or infirm parents. The obligation of a person to maintain his or her aged or infirm parent in so far as the parent is unable to maintain himself or herself out of his or her own earnings or other property.
Similarly, Section 125 of the Code of Criminal Procedure, 1973 makes a provision that in case a person having sufficient means neglects or refuses to maintain his father or mother, unable to maintain himself or herself, a Magistrate of the first class may, upon proof of such neglect or refusal, order such person to make a monthly allowance for the maintenance of his wife or such child, father or mother, at such monthly rate as such Magistrate thinks fit, and to pay the same to such person as the Magistrate may from time to time direct. The provisions contained in Hindu Adoption & Maintenance Act related only to Hindus and that too for aged or inform parents. It did not contain provision to take complete care of Senior Citizen. Similarly, Code of Criminal Procedure makes provision only in respect to those parents who are neglected or refused to be maintained and/or is unable to maintain himself.
In the year 1999 Government of India adopted the National Policy on Older Persons, 1999 in pursuance of the UN General Assembly Resolution 47/5 to observe 1999 as International Year of Older Persons and in keeping with obligation contained in Article 41 of the Constitution. The international endeavour i.e. The Madrid Plan of Action and the United Nations Principles for Senior Citizens adopted by the UN General Assembly in 2002, the Proclamation on Ageing and the global targets on ageing for the Year 2001 adopted by the General Assembly in 1992, the Shanghai Plan of Action 2002 and the Macau Outcome document 2007 adopted by UNESCAP formed the basis for the global policy guidelines to encourage government to design and implement their own policies from time to time. The Government of India is a signatory to all such documents demonstrating its commitment to address the concerns of the elderly. The policy and plans were put in place by central and state governments for the welfare of older persons. Pensions, travel concessions, income tax relief, medical benefit, extra interest on savings, security of older persons through an integrated scheme of the Ministry of Social Justice and Empowerment as well as financial support was provided for Homes, Day Care Centres, Medical Vans, Help Lines etc are extended currently. The Ministry of Social Justice and Empowerment coordinates programmes to be undertaken by other Ministries in their relevant areas of support to older persons.
The Social Defence Division of the Ministry mainly caters to the requirements of Senior Citizens. The Ministry develops and implements Acts, Policies and Programmes for welfare of Senior Citizens in collaboration with State Governments/ Union Territory Administrations to ensure that Senior Citizens may lead a secured, dignified and productive life. The laws and policies which are applied to achieve this laudable objection need to be discussed.
Having been confronted with the problem of taking care of senior citizen Central Government enacted Maintenance & Welfare of Parents and Sr. Citizens Act, 2007 (hereinafter called 2007Act) to provide for more effective provisions for the maintenance and welfare of parents and senior citizens guaranteed and recognised under the Constitution and for matters connected therewith or incidental thereto. Government of India, Ministry of Social Justice and Empowerment, Department of Social Justice and Empowerment has set up a Senior Citizen Division.
Section 2(h) of 2007 Act defines a “senior citizen” means any person being a citizen of India, who has attained the age of sixty years or above. The 2007 Act makes it obligatory upon the “children” i.e. son, daughter, grandson and grand-daughter excluding a minor and a “relative” i.e. any legal heir of the childless senior citizen who is not a minor and is in possession of or would inherit his property after his death to provide maintenance of upto Rs.10,000/- per month, if so claimed by the parents and grand-parents. A Tribunal constituted under the Act has to fix monthly allowance of interim maintenance, payable from the date of order or from the date of application. Failure to comply without sufficient cause can invite issuance of warrants for fine on application to be made within three months and also for imprisonment, which may extend to one month for every default. Maintenance order can be enforced anywhere where children or relatives reside. Besides making it obligatory upon the children and relatives to provide maintenance to Senior Citizen, the Government has also been obligated to set up old age homes and also to provide for medical care of senior citizen. The Act further lays obligation upon the Government to provide comprehensive action plan for providing protection of life and property of senior citizens. The provision goes to the extent that even if senior citizen has transferred his property to his children or relative such transfer shall be rendered void if transferee fails to provide basic amenities and basic physical needs to such senior citizen. Those who abandon the senior citizen are punishable upto three months or fine upto 5000/- or both.
In line with its continuous endeavour to ameliorate the lot of the Senior Citizen and to make their lives easy, Central Government adopted National Policy on Senior Citizens 2011. Endeavour is to provide quality of life in old age and health care. Increase in life span results in chronic functional disabilities creating a need for assistance required by Older persons. Special emphasis was laid to target women who are in precarious state having suffered lifetime of gender based discrimination, often stemming from deep-rooted cultural and social bias and compounded by discrimination based on class, caste, disability, illiteracy, unemployment and marital status. Over 50% of women over age 80 are widows. It was recognized that the rural poor would need social security in large measure at later years of life. The objectives of this policy were to include the demographic explosion among the elderly, the changing economy and social milieu, advancement in medical research, science and technology and high levels of destitution among the elderly rural poor. The prime object of the policy was to develop a formal and informal social support system, so that the capacity of the family to take care of senior citizens is strengthened and they continue to live in the family. The policy seeks to reach out in particular to the bulk of senior citizens living in rural areas who are dependent on family bonds and intergenerational understanding and support. The focus of the policy was to mainstream senior citizens, especially older women. To promote the concept of “Ageing in Place” or ageing in own home, housing, income security and home care services, old age pension and access to health care insurance schemes and other programmes and services to facilitate and sustain dignity in old age. The thrust of the policy was to be preventive rather than cure. The institutional care was to be the last resort. The policy recognised that care of senior citizens has to remain vested in the family which would partner the community, government and the private sector. Senior citizens were to be recognized as a valuable resource for the country and create an environment that provides them with equal opportunities, protects their rights and enables their full participation in society. By ensuring their social security, health care, shelter and welfare, their abuse and exploitation could be protected.
The policy required to provide income security in old age by launching Old Age Pension Scheme. Public Distribution System was to reach out to cover all senior citizens living below the poverty line. Income Tax rebate for senior citizens, to make available loans at reasonable rates of Interest to start small businesses. Senior citizens have to cope with health and associated problems some of which may be chronic, of a multiple nature, require constant attention and carry the risk of disability and consequent loss of autonomy were to be given high priority with focus on preventive, curative, rehabilitative health care. Efforts would be made to strengthen the family system so that it continues to play the role of primary caregiver in old age. This would be done by sensitizing younger generations and by providing tax incentives for those taking care of the older members. RSBY (Rashtriya Swasthya Bima Yojana) is promoted and senior citizens are compulsorily included in the coverage. Special programmes were to be developed to increase awareness on mental health and for early detection and care of those with Dementia and Alzheimer?s disease. Restoration of vision and eyesight of senior citizens will be an integral part of the National Programme for Control of Blindness (NPCB). The prevailing National Programme for Health Care of the Elderly (NPHCE) was to be expanded and in partnership with civil society organizations, scaled up further. Public private partnership models will be developed wherever possible to implement health care of the elderly. Services of mobile health clinics would be made available through PHCs or a subsidy would be granted to NGOs who offer such services. Health Insurance cover would be provided to all senior citizens through public funded schemes, especially those over 80 years who do not pay income tax. Provision was to be made for safety and security of senior citizens with a direction to the Police to keep a friendly vigil and monitor programmes which will include a comprehensive plan for security of senior citizens whether living alone or as couples and to promote mechanisms for interaction of the elderly with neighbourhood associations. Ten percent of housing schemes for urban and rural lower income segments were to be earmarked for senior citizens. Special arrangements for travel of senior citizen. A welfare fund for senior citizens was to be set up to generate revenue through a social security cess besides larger budgetary allocations to be made, which could be used for the welfare of the senior citizen. The policy was to have focus on promoting bonding of generations and multigenerational support by incorporating relevant educational material in school curriculum and promoting value education. Block Development Offices, Panchayat Raj Institutions and Tribal Councils/Gram Sabhas Block Development offices would appoint nodal officers to serve as a one point contact for senior citizens to ease access to pensions and handle documentation and physical presence requirements, especially by the elderly women.
This shows that the Government has already launched its policies and enacted 2007 Act with laudable object of taking all round care of the senior citizen. However, despite all these provisions, it seems that the true effect of these policies and statutory provisions has not percolated down to the most needy. Government has made provision for financial assistance by giving old-age pension to the senior citizen so that they are able to meet their financial needs but considering the large number of senior citizen, especially the poor ones, the quantum of pension of say Rs.1000/- or so per month given is hardly sufficient to meet dire needs of senior citizen in distress.
It would have been one of the basic parameters to ascertain social structure of our Society. Because of impact of family planning norms, the family units comprising of husband, wife and children is reduced in size. There has also been more stress on education as a result of which the children become financially and socially independent during their twenties and are supposed to move out of their homes leaving senior citizen invariably alone. This phenomena is higher in rural areas as compared to urban areas. So by the time a person attains age of a “senior citizen” the children are no more living under one roof. It creates a situation where own children are not available to take care of the needs of senior citizen. Even though the children may be able to financially assist their old parents, they are not present to take personal care. Though the Govt. aims at family care to senior citizen but that is not at times possible due to small size of families and the children moving away from their homes for better avenues. Therefore, the despite all policy trust of the Government, the majority of senior citizen are not getting physical care from family. Further wherever family is available to take care of senior citizen invariably they are not trained to do so. Therefore, the Government shall have to make available adequate and trained manpower which takes care of senior citizen.
It would be appropriate to make reference to another policy of the Government; namely, National Health Mission. National Health Mission (NHM) was started by the Hon’ble Prime Minister of India in the year 2005 with following objectives:-
• To provide effective healthcare to rural population throughout the country with special focus on 18 states, which have weak public health indicators and/or weak infrastructure.
• To raise public spending on health from 0.9% GDP to 2-3% of GDP, with improved arrangement for community financing and risk pooling.
• To undertake architectural correction of the health system to enable it to effectively handle increased allocations and promote policies that strengthen public health management and service delivery in the country.
• To revitalize local health traditions and mainstream AYUSH into the public health system.
• Effective integration of health concerns through decentralized management at district, with determinants of health like sanitation and hygiene, nutrition, safe drinking water, gender and social concerns.
• Address inter State and inter district disparities.
• Time bound goals and report publicly on progress.
• To improve access to rural people, especially poor women and children to equitable, affordable, accountable and effective primary health care.
The National Rural Health Mission (NRHM) has been launched with a view to bringing about dramatic improvement in the health system and the health status of the people, especially those who live in the rural areas of the country. The Mission seeks to provide universal access to equitable, affordable and quality health care which is accountable at the same time responsive to the needs of the people, reduction of child and maternal deaths as well as population stabilization, gender and demographic balance. In this process, the Mission would help achieve goals set under the National Health Policy and the Millennium Development Goals. To achieve these goals NRHM will:
• Facilitate increased access and utilization of quality health services by all.
• Forge a partnership between the Central, state and the local governments.
• Set up a platform for involving the Panchayati Raj institutions and community in the management of primary health programmes and infrastructure.
• Provide an opportunity for promoting equity and social justice.
• Establish a mechanism to provide flexibility to the states and the community to promote local initiatives.
• Develop a framework for promoting inter-sectoral convergence for promotive and preventive health care.
• Reduction in child and maternal mortality
• Universal access to public services for food and nutrition, sanitation and hygiene and universal access to public health care services with emphasis on services addressing womens and childrens health and universal immunization
• Prevention and control of communicable and non-communicable diseases, including locally endemic diseases.
• Access to integrated comprehensive primary health care.
• Population stabilization, gender and demographic balance.
• Revitalize local health traditions & mainstream AYUSH.
• Promotion of healthy life styles.
• Improved access to universal immunization through induction of Auto Disabled Syringes, alternate vaccine delivery and improved mobilization services under the programme.
• Improved facilities for institutional deliveries through provision of referral transport, escort and improved hospital care subsidized under the Janani Surakshya Yojana (JSY) for the below poverty line families.
• Availability of assured health care at reduced financial risk through pilots of Community Health Insurance under the Mission.
• Availability of safe drinking water.
• Provision of household toilets.
• Improved outreach services to medically under-served remote areas through mobile medical units.
• Increase awareness about preventive health including nutrition.
In the year 2013, the Govt. of India decided to aim eradication of defects at birth, diseases, deficiencies and developmental delays including disabilities i.e. 4 Ds amongst the children and therefore, launched Rastriya Bal Swasthaya Karyakarm (RBSK). A detailed guidelines were set out for implementing this programme known as Child Health Screening and Early Intervention Services under National Rural Health Mission initiated by the Ministry of Health and Family Welfare. The target group under this Programme is to cover all children from 0 to 18 years of age.
For implementing the Programme, the Govt. decided to set up District Early Intervention Centres throughout the country. The DEICs were to work under the National Health Mission as a Special Project. Various aims and objectives of DEICs and infrastructure/posts created thereunder are set out in guidelines laid down in this regard. A team consisting of Paediatrician, Medical Officer, Staff Nurses, Para-medics, Early Interventionist-cum-Special Educator-cum-Social Worker-cum Manager etc., a total of 13 posts in each district of the country was created.
The emphasis of National Health Mission is on services addressing womens and childrens health. Special emphasis also needs to be laid on taking physical care of “senior citizen” on the similar lines which is altogether missing for which the existing infrastructure and trained personnel already appointed by the Governments under National Health Mission could be utilised. National Programme for Health Care of the Elderly needs to be synthesized with National Health Mission so that major aspect of physical health and care of senior citizen could be addressed in a more effective manner.
Situations are emerging in courts that senior citizen move to the authority under the Act for seeking maintenance and for relief under section 23 of the Act and despite the fact that favourable orders are passed in favour of senior citizen, the same remain unimplemented due to delay in execution of such orders invariably due to challenge being made to such orders in higher forums and in the meantime senior citizen being of advanced age, in distress and at times ailing, passes away, the benefit thus accrued in favour of senior citizen remains unexecuted and bestows back upon the children/ relatives who were responsible for not maintaining the senior citizen. Thus legal heirs become beneficiary of their own wrongs. Why should they be allowed taken benefit of their own wrongs.
On this proposition of law, in case reported as Indian Council for Enviro-Legal Action v. Union of India (SC), 2011(8) SCC 161, Hon’ble Supreme Court laid down following principles of law:-
“223. The other aspect which has been dealt with in great details is to neutralise any unjust enrichment and undeserved gain made by the litigants. While adjudicating, the courts must keep the following principles in view.
1. It is the bounden duty and obligation of the court to neutralise any unjust enrichment and undeserved gain made by any party by invoking the jurisdiction of the court.
2. When a party applies and gets a stay or injunction from the court, it is always at the risk and responsibility of the party applying. An order of stay cannot be presumed to be conferment of additional right upon the litigating party.
3. Unscrupulous litigants be prevented from taking undue advantage by invoking jurisdiction of the Court.
4. A person in wrongful possession should not only be removed from that place as early as possible but be compelled to pay for wrongful use of that premises fine, penalty and costs. Any leniency would seriously affect the credibility of the judicial system.
5. No litigant can derive benefit from the mere pendency of a case in a court of law.
6. A party cannot be allowed to take any benefit of his own wrongs.
7. Litigation should not be permitted to turn into a fruitful industry so that the unscrupulous litigants are encouraged to invoke the jurisdiction of the court.
8. The institution of litigation cannot be permitted to confer any advantage on a party by delayed action of courts.
In the event of failure of children/relatives to take care and maintain senior citizen it is the Government which is toiling hard to do so, it must be ensured by the Government that benefit of orders passed in favour of Senior Citizen does not automatically revert back to such wrong doer children/relatives upon death of senior citizen when orders remain unimplemented. The benefits accruing upon execution of such valid orders should go to public exchequer which is funding the infrastructure being created by the Government for care and maintenance of senior citizen. Law relating to succession needs to be amended suitably to make statutory provision. Even Immediate amendments in this require to be made in the 2007 Act.
It’s my ardent feeling that in case these gaps are not filled up immediately, the aimed outcome would be hazy and vague. There should be zero possibility why even single senior citizen in need should not get service. Responsive mechanism is the site need of the hour.
© Chawla Publications (P) Ltd.
Note: kindly note the dates of enforcement of various acts which are mentioned in this article.
Despite heavy protest by the president of India. The Hindu Marriage Act, 1955 was enforced on 18th May 1955. Section 5 of this act defines “various conditions for solemnizing marriage between any two Hindu”. Sub section 1 of this section lays down a very major condition that “neither of the party has a spouse leaving at the time of the marriage”.
Section 11 of this act defines the Void marriage, which reads as “any marriage solemnised after the commencement of this act shall be null and void and may on a petition presented by either party there to against the other party be so declared by a degree of nullity if it contravenes any one of the conditions specified in clause (1), (4) or (5) of section 5”.
According to section 5 and section 11 of Hindu marriage act, a married person cannot perform second marriage in the lifetime of his first spouse and if he or she do so, then under section 11 of this act, the second marriage shall be declared null and void by any civil competent court.
The Hindu succession act, 1956 was enforced on 17th June 1956 in this country. Section 10 of this act defines a “distribution of properties among heirs among the clause first of the schedule.” The property of an intestate shall be divided among the heirs in the clause 1st of the schedule in accordance with the following rules. Rule 1– the intestates, or if there are more widows than one, all the widows together shall take one share.
On the other hand, Hindu adoption and maintenance act, 1956 was enforced on 21st December, 1956. According to explanation of section 7 of this act which defines the “capacity of a male Hindu to taken in adoption”. If a person has more than one wife leaving at the time of adoption the consent of all the wifes is necessary unless the consent of any one of them is unnecessary or any of the reason specified in the preceding proviso.
According to a judgement mentioned in 2009(4) RCR CIVIL on pg.401, “when there are two special acts dealing with the same subject matter, the legislation which has been enacted subsequently should prevail.”
In this article, as I have mentioned above that the Hindu marriage act,1955 was enforced on 18th May 1955, Hindu succession act enforced on 17th June 1956 and Hindu adoption and maintenance act was enforced on 21st December 1956.
So, as Hindu Succession and Hindu adoption and maintenance act, were passed subsequent to Hindu marriage act, and both these acts supersede Hindu marriage act. Therefore, any male married Hindu can perform number of marriage in the lifetime of his first wife after enforcement of Hindu Marriage Act.
If all these above-mentioned acts exist as it exists before, then one prostitute lady will get her share in succession of disease husband and similarly according to section 16 of Hindu marriage act, ille-gitimate children born out of void and voidable marriage will get their share in succession from the property of their disease father.
According to my own opinion, if we go with the history of India there was no codify law regarding Hindu marriage, adoption and succession act etc prior to Independence. Therefore, at that point of time Raja Maharajas and Zamindars and higher-class body and ruling class body of married male section usually perform more than one marriage. India became Independent state on 15th August 1947. At that point of time, such type of problem was persisting as customary Hindu law, gave permission to such type of marriage. To face this situation Hindu Succession Act, 1956 and Hindu adoption and maintenance act, 1956 covered the issue of more than one wife of legally wedded male Hindu or it may be seeming to be a flow in draftsmen ship of both the abovementioned act. Lastly, I would say that both the mistake as I discussed above should be amended. So, such type of problem comes to end and therefore, one Hindu can tell with proud that uniform civil code still exists in India. Otherwise, both Hindu and Muslim make a serious allegation upon male member of any community that he can perform number of marriage with no of lady of their community.
© Chawla Publications (P) Ltd.
It has been 165 years to the framing of our Indian Penal Code (IPC) under the British Rule but many of our laws still remain archaic. One of the controversial provisions is section 377. Inspired by the Victorian Era moral code, Section 377 criminalizes what it perceives to be ‘carnal intercourse against the order of the nature’[1].
The discourse around section 377 has often shied away from discussing at length the rights of all sexual minorities in India and of the LGTB community (Lesbians Gays Trans-genders and Bi-Sexuals) in particular. Their right to privacy is arbitrarily violated by anyone and everyone with the slightest of power and authority, from the moral police to the police constabulary. And all this happens because homosexuality is still not decriminalized in India. The commendable and progressive judgement to decriminalize the consensual homosexual activities between adults was passed by the Delhi High Court in the year 2009 (Naz Foundation v. Government of NCT of Delhi [DB], 2009 (160) DLT 277). This has been over ruled by our Hon’ble Supreme Court in the year 2013 (Suresh Kumar Koushal v. Naz Foundation, 2014(1) SCC 1).
It is important to note here that there has been a tremendous swing in the understanding of homosexuality worldwide, from evil and crime to a normal variant of human sexuality. The World Health Organisation, in 1992, officially accepted its normal variant status. India has accepted many activities which in the earlier times were considered unnatural, such as surrogacy, live-in relationships etc. Homosexuality should be next in the row as many countries have already decriminalised this behaviour and some have recognised same-sex marriages. India is one of the few remaining countries where consensual homosexual activities are yet to receive a legal status and decriminalised.
There have been many studies in the recent times that have documented a high occurrence of same-sex feelings and behaviour in men and women and its prevalence across cultures. Certain investigations used psychological tests and yet could not differentiate heterosexual from homosexual orientation. Studies also confirmed that people with homosexual orientation did not have any objective psychological dysfunction or impairments in judgement. The ‘alternate’ sexuality has now been considered a normal variation by the medical health professionals, psychiatric professionals, and mental health professionals.
An amusing reality of our times, however, is that consensual homosexual conduct was not criminalised before the British Rule and the same is not what the western culture taught us. The Indian society’s misconception has always been that homosexuality is just a concept adopted from the West. However, we have failed to acknowledge the existence of homosexuality within our households and what we have learned from the West is in fact how to criminalize it. Our sexual minorities are not going to vanish from our country and it is our moral imperative as an inclusive society to recognise and respect their ‘alternate’ sexuality and join in their fight for legal rights. Moreover, it is about time that we delineate the distinction between homosexuality and sodomy.
It is indispensable in this context to understand that homosexual activities done without the consent of the other person, regardless of the other person’s sex, should constitute heinous acts. However, when a boy is sodomised by another boy/man, he finds it extremely difficult to get this act reported or get a complaint registered in a police station. He fears stigma and undergoes trauma knowing that people, even close ones, might not believe him. While gender sensitisation of our society, police and administration is essential when it comes to crimes like rape, much more needs to be done to throw light on sodomy especially when it involves young boys.
Children form the most vulnerable group against which the offence of sodomy is committed. Many recent newspaper reports have shown how children, both girls and boys, in all age groups have become the casualty of this heinous crime. A study by the Ministry of Women and Child Development in 2007 revealed that a majority of children who are victims of sexual abuse have been abused by people known to them and in positions of trust and responsibility (parents, relatives, teachers). Despite this, the Juvenile Justice (Care and Protection of Children) Act, 2000 does not contain any provisions or safeguards whatsoever relating to the offence of sodomy.
The universal law of Human Rights mentions that norms of the society, tradition, customs or values cannot be used to limit a person from declaring his fundamental and constitutional rights. If we were to accept the explanation, given to us by cultural views, public strategy and societal morals, which have always restricted a person’s right then there would have been no progressive legislation enacted in our country. Sati, dowry, child marriage and infanticide are practices derived from cultural conviction, but the State still took steps to prohibit them.
Hence, when they say that “when a man mounts another man the throne of the God is shaken” it should only be shaken if the same or the similar act is done against the will of the person or against a child or against an animal.
© Chawla Publications (P) Ltd.
All over the Hindu and Christian worlds, marriage began as a sacrament. Marriage began as a sacrament implied a permanent and indissoluble union. It was a union not merely in this life but also in all lives to come-an eternal union. The sanctity of marriage is still deeply guarded by the society but that is not to say that people don’t adopt alternative forms of living arrangements. A live in relationship is just such an alternative arrangement which is gathering momentum and acceptance today. Earlier mahahrajas, nawabs, zamindars and other rich men of status in the society used to have several live-in women in their zenanas, apart from their legally wedded wives. Such live-in relationships were in addition to marriage and it was not considered immoral for men to indulge in this practice[1]. Sometimes an additional household was maintained by men for live-in women away from their families. Now such relationships are generally in place of marriage instead of being additional to marriage. Young men and women, who do not want to undertake the commitment and responsibilities of a marriage, start living together with the freedom to walk away any time. In metropolitan cities, this practice is encouraged to some extent by high cost of accommodation and reduced societal control.
The Hindu Marriage Act 1955 does not recognize ‘live-in-relationship’. Nor does the Criminal Procedure Code 1973. The Protection of Women from Domestic Violence Act 2005 (PWDVA) on the other hand for the purpose of providing protection and maintenance to women says that an aggrieved live-in partner may be granted alimony under the Act. The year 2010 was a significant year in the legal sphere related to live-in relationships, with the judiciary in both the Supreme Court and the High Courts delivering numerous decisions on the legal status of live-in relationships. In S. Khushboo v. Kanniammal (2010) 5 SCC 600 (vide para 31), the Supreme Court, placing reliance upon its earlier decision in Lata Singh v. State of U.P. AIR 2006 SC 2522, held that a live-in relationship is permissible only in unmarried major persons of heterogeneous sex and is not a criminal offence under any law.
Though there have been a few recent judgements regarding live-In relationships as discussed above, there are few issues which have not been addressed or not adequately addressed.
One of the main concerns which remain unclear is what length of time of cohabitation will enable the person to be qualified as domestic partner. While a casual “walk-in walk-out” relationship cannot qualify a partner for succession rights, long time-period of continuous cohabitation has been accepted as a marker for grant of successful succession or maintenance rights. It is necessary to statutorily make a fixed time or make differentiation between a “walk-in walk-out live-in relationship” and a live-in relationship which will make a person qualify for a succession rights. Another intertwined issue is the question of “proof of continuous cohabitation like married couple”. It is essential that the party represents themselves like married couples to the society and there has been social recognition to that effect. The Courts have specifically mentioned any negative evidence regarding the period of continuous cohabitation can weaken the case.
While it threatens the very notion of husband and wife and the cognition of marriage that enjoys high level of sanctity when it comes to India, it also tends to prop up adultery, as there is no such proscription that live in partners should be unmarried. Thus, a person might be married and be living with someone else under the garb of live in relationship.
Another question which is under debate is that live-in relationship promotes bigamy. The Court have addressed that a person needs to be unmarried to be granted maintenance rights.
Contrastingly, the Court has also held that in live-in relationship, there can be no complain of infidelity or immorality Alok Kumar v. State. Crl. M.C. No. 299/2009 MANU DE/2069/2010. (Del. H.C. Aug. 9, 2010). However, it is not clear, if bigamy is allowed under the person’s religion whether such claims can be sustained. Another contrasting problem, is that person who is deserted remains helpless in such cases where the persons lived into a bigamous relationship and the courts considers unmarried status to be one of the condition for granting maintenance. In such cases, the deserters go scot free, due to the loop-holes present in the law. According to the author, in case of long period of cohabitation, where the couples represent themselves as a married couple, there can be an exception in providing maintenance rights and grounds of the person to be unmarried will be considered as an exception. It is necessary to take a proper stand and differentiation should be made between the rights and liabilities that are in bigamous live-in relationships.
The law on live in relationship need to demonstrate a clear cut picture keeping in mind the present social context along with the basic structure of tradition and culture that characterises Indian society. Live-in-Relation would give rise to child pregnancy and has far reaching ramifications, adding despite its aim to restrict multiple partners. It would have an adverse impact on the youths and result in the spread of HIV/Aids. Therefore awareness amongst youth in most important.
Hence, as we observed many questions with respect to live in relationship remains unanswered. On the one hand it faces speculation from society and secondly legal status of live in relationship evinces contingency. The more clear approach and attitude of law and the changing time and stance of society will determine the future of live in relationship. Laws should be made by the parliament, which should keep a check on the practice of evading bondages.
All over the Hindu and Christian worlds, marriage began as a sacrament. Marriage began as a sacrament implied a permanent and indissoluble union. It was a union not merely in this life but also in all lives to come-an eternal union. The Shanskarars ordained that once is a maiden given in marriage, and the injunction was: “A true wife must preserve her chastity as much after as before her husband’s death”[5]. Indian society has been in a state of transition from the old world to the new, altering old customs and traditions in light of the cultural changes and the influence of the west. The sanctity of marriage is still deeply guarded by the society but that is not to say that people don’t adopt alternative forms of living arrangements. A live in relationship is just such an alternative arrangement which is gathering momentum and acceptance today. Earlier mahahrajas, nawabs, zamindars and other rich men of status in the society used to have several live-in women in their zenanas, apart from their legally wedded wives. Such live-in relationships were in addition to marriage and it was not considered immoral for men to indulge in this practice[6]. Sometimes an additional household was maintained by men for live-in women away from their families. Now such relationships are generally in place of marriage instead of being additional to marriage. Young men and women, who do not want to undertake the commitment and responsibilities of a marriage, start living together with the freedom to walk away any time. In metropolitan cities, this practice is encouraged to some extent by high cost of accommodation and reduced societal control.
6. Dr.Sukhdarshan Singh Khehra, Legal Recognition of Live-in Relationship: Role of Judiciary, in “Growth of Law in India Role of Judiciary” 274(2008).
The concept of ‘Mitru Sambandh’ is nothing but a concept of the ‘Live-in-relationship’ or ‘Living relationship’. Generally speaking, in modern age increasing concept of live-in relationship means a male and female staying together as a friend without marriage. This is unstable form of family. Many people imagine that living together before marriage resembles taking a car for a test drive. Live-in-relationships are not new in our society. The only difference is that now people have become open about it. A living arrangement in which an unmarried couple lives together in a long-term relationship that resembles a marriage.
The Supreme Court in D Veluswamy v. D Patchaiammal, AIR 2011 SC 479 has explained the definition of Live- in Relationships with reference to Domestic Violence Act. The Court in its judgement in the mentioned rule:
Section 2(f) states:
“domestic relationship” means a relationship between two persons who live or have, at any point of time, lived together in a shared household, when they are related by consanguinity, marriage, or through a relationship in the nature of marriage, adoption or are family members living together as a joint family”;
Having noted the relevant provisions in The Protection of Women from Domestic Violence Act, 2005, court pointed out that the expression ‘domestic relationship’ includes not only the relationship of marriage but also a relationship ‘in the nature of marriage’. The question, therefore, arises as to what is the meaning of the expression ‘a relationship in the nature of marriage’. Unfortunately this expression has not been defined in the Act. Since there is no direct decision of this Court on the interpretation of this expression we think it necessary to interpret it because a large number of cases will be coming up before the Courts in our country on this point, and hence an authoritative decision is required.
In the words of Dhingra J., “There are no legal strings attached to this relationship nor does this relationship create any legal-bond between the partners. People who choose to have live-in relationship cannot complain of infidelity or immorality as live-in relationships are also known to have been between a married man and unmarried woman or vice-versa”
Live in Relationship is contractual relationship. There is offer and acceptance between parties to live in relationship so such relationship should be framed within ambit of law. We need special legal rules to deal with consequences of such relationship. In spite of no clear and specific legal sanction, there has been a huge societal change in the attitude towards live-in relationships, the multinational companies providing health insurance benefits to domestic partner of the employees[8].
No law at present deal with the concept of live-in-relationships and their legality. Still even in the absence of a specific legislation on the subject, it is praise-worthy that under The Protection of Women from Domestic Violence Act, 2005, all benefits are bestowed on woman living in such kind of arrangement by reason of being covered within the term “domestic relationship” under Section 2(f). If we propose to enact a law to regulate live-in-relationships, though it would grant rights to parties to it but at the same time it would also impose obligation on them. Female live-in partners have economic rights under Protection of Women from Domestic Violence Act 2005
The Hindu Marriage Act 1955 does not recognize ‘live-in-relationship’. Nor does the Criminal Procedure Code 1973. The Protection of Women from Domestic Violence Act 2005 (PWDVA) on the other hand for the purpose of providing protection and maintenance to women says that an aggrieved live-in partner may be granted alimony under the Act.
The Fundamental right under Article 21 of the Constitution of India grants to all its citizens “right to life and personal liberty” which means that one is free to live the way one wants. Live in relationship may be immoral in the eyes of the conservative Indian society but it is not “illegal” in the eyes of law.
Section 114, Indian Evidence Act, 1872, lays down that where independent evidence of solemnization of marriage is not available, it will be presumed to be a valid marriage by continuous cohabitation between the parties unless the contrary is proved.
However, living together has been long considered to be presumption of marriage until some facts prove it to be otherwise under Section 114 of Indian Evidence Act, 1872. In, A. Dinohamy v. W.L. Blahamy, AIR 1927 P.C. 185, the Privy Council laid down the general proposition that; “where a man and woman are proved to have lived together as man and wife, the law will presume, unless, the contrary be clearly proved that they were living together in consequence of a valid marriage, and not in a state of concubinage.”Long cohabitation by a man and a woman has all along, directly or indirectly, been recognised by the judiciary in India. Even in the nineteenth century, courts enforced some agreements where the consideration was past cohabitation. According to Section 23 of the Indian Contract Act, 1872 if court regards the consideration of an agreement immoral, it is unlawful and consequently the agreement is void. Where a man and a woman live and cohabit together, although not lawfully married to each other and the man in consideration of the past cohabitation agrees to transfer property to the women or to make provision for her maintenance, the question often arises as to the enforceability of such an agreement.
In Dhiraj Kaur v. Bikramjit Singh, (1881) ILR 3 All 787, the Allahabad High Court allowed a woman to recover arrears of allowance promised to her for past cohabitation. The Patna High Court, in Godfrey v. Parbati, AIR 1938 Pat 502, held that a contact to compensate a woman for what she had lost on account of past cohabitation with the promise was not immoral and hence enforceable. However, if cohabitation amounts to adultery under the Indian Penal Code, such agreements are void for consideration being forbidden by law. The Madhya Pradesh High Court also enforces an agreement in Subhashchandra v. Smt. Narbadabai, AIR 1982 MP 236 where the consideration was apparently past cohabitation. In this case, Narbadabai has been living in exclusive keeping of one Seth Kishanlal, a married man for the past about fifty years and was entitled to claim maintenance (as mentioned in the agreement) during her lifetime from the estate of Kishanlal. The cohibtation was not shown to be adulterous. It was held by the high Court that agreement embodied a valid contract and was enforceable.
In D. Nagaratnamba v. Kunuku Ramayya, AIR 1968 SC 253, Justice Bachawat of the Supreme Court of India recognised past cohabitation as a good consideration. These cases were concerning enforceability of agreements where the consideration was past cohabitation without marriage and upholding lawfulness of consideration in such cases amounted to legal recognition of live-in relationship by the judiciary.
In Mohabhat Ali v. Md. Ibrahim Khan, AIR 1929 PC 135, the Privy Council, which was the highest court of appeal for Indian cases prior to Supreme Court, held that, “the law presumes in favour of marriage and against concubinage when a man and woman have cohabited continuously for number of years.”
The Supreme Court stated in Badri Prasad v. Dy. Director of Consolidation, AIR 1978 SC 1557 a case where a man and a woman lived together for around 50 years that, there would be strong presumption in favour of wedlock. The Court however added that, “the presumption was rebuttable, but a heavy burden lies on the person who seeks to deprive the relationship of legal origin to prove that no marriage took place. Law leans in favour of legitimacy and frowns upon bastardy.”
The Supreme Court in Gokal Chand v. Parvin Kumari, AIR 1952 SC 231 observed that continuous cohabitation of woman as husband and wife and their treatment as such for a number of years may raise the presumption of marriage, but the presumption which may be drawn from long co-habitation is rebuttable and if there are circumstances which weaken and destroy that presumption, the Court cannot ignore them[17].
In the judgements before 2000 there is hardly any case where the Courts have used the word “live-in relationship” to clarify the legal status of a domestic partner or in any other such connections. In 2001, the Allahabad High Court held in Payal Sharma v. Superintendent, Nari Niketan, Agra, AIR 2001 All 254, that a major man and woman can stay together without getting married if they want and this is not illegal.
The Supreme Court in the case of Vidyadhari v. Sukhrana Bai, 2008 (2)SCC 238, issued a Succession Certificate to the live-in partner, who was nominated by the deceased. In, Abhijit Bhikaseth Auti v. State of Maharashtra, Crl. W.P. No. 2218/2007 MANU/MH 1432/2008 (Bom. H.C. Sept. 16. 2009), the Bombay High Court observed that it is not necessary for a woman to strictly establish the marriage, to claim maintenance under section 125 of Cr.P.C. In, Koppisetti Subbharao Subramaniam v. State of A.P., Crl. Appl. No. 867/2009 MANU/SC/0689/2009 (S.C. September 24. 2009), the Supreme Court extended the protection against dowry under Section 498 A of the Indian Penal Code so as to “to cover a person who enters into marital relationship and under the colour of such proclaimed or feigned status of husband” and resort to cruelty or torture to the women. This case has extended the protection of women from dowry even when they are in a live-in relationship. In Tulsa v. Durghatiya, 2008 (4) SCC 520, the Supreme Court re-recognised the rule that there would be a presumption of marriage when there has been long cohabitation.
The year 2010 was a significant year in the legal sphere related to live-in relationships, with the judiciary in both the Supreme Court and the High Courts delivering numerous decisions on the legal status of live-in relationships. In S. Khushboo v. Kanniammal, (2010) 5 SCC 600 (vide para 31), the Supreme Court, placing reliance upon its earlier decision in Lata Singh v. State of U.P., AIR 2006 SC 2522, held that a live-in relationship is permissible only in unmarried major persons of heterogeneous sex and is not a criminal offence under any law. The court said even Lord Krishna and Radha lived together according to mythology. The apex court said there was no law which prohibits live-in relationship or pre-marital sex. The apex court made the observation while reserving its judgement on a special leave petition filed by noted south Indian actress Khusboo. Living together is a right to life, “the apex court said apparently referring to Article 21 which granted right to life and liberty as a Fundamental Right. “It’s better to have a live-in relationship rather than having a divorced life!” This is common and quite rational line favouring live-in relations in the world. Live in relationship are not new for western countries but these days the concept is adjusting its roots in east also.
In Narayan Jagluji Thool & others v. Mala Chandan Wani, AIR 2015 Bombay 36, Section 2(f) of Protection of Women from Domestic Violence Act,2005 does not require that a women should be a wife and it is enough that she is living with a man in relationship, which is similar to that of a marriage. But there is a rider to it. She should be unmarried and be otherwise qualified to marry. In the instant case respondent is a married woman, whose marriage with her husband is still subsisting and this being the position, her relationship with another man outside marriage cannot be termed as domestic relationship under Section 2(f) of the Act, 2005. Therefore, she cannot seek protection under Act and if the proceeding are allowed to be continued, it would be nothing but abuse of the process of law.
The Supreme Court on 13 August, 2010 in the case of Madan Mohan Singh v. Rajni Kant, (2010) INSC 631 has once again entered the debate on legality of the live-in relationship as well as legitimacy of a child born out of such relationship. The Court while dismissing the appeal in the property dispute held that there is a presumption of marriage between those who are in live-in relationship for a long time and this cannot be termed as ‘walking-in and walking-out’ relationship. In the case of Bharata Matha v. R. Vijaya Renganathan, 2010 (6) SCALE 53 dealing with the legitimacy of child born out of a live-in relationship and his succession of property rights, the Supreme Court held that such a child may be allowed to succeed inheritance in the property of the parents, if any, but doesn’t have any claim as against Hindu ancestral coparcenary property.
However, in another case, Revanasiddappa v. Mallikarjun, 2011 (2) UJ 1342(SC), the Supreme Court observed that taking into consideration the current social circumstances, it is necessary that the amended Section 16 (3) of the Hindu Marriage Act must be interpreted to give right of inheritance to an illegitimate child to the ancestry property.
The Delhi High Court in its decision on 10 August 2010, in Alok Kumar v. State, Crl. M.C. No. 299/2009 MANU/DE/2069/2010, (Del. H.C. August 9, 2010) while dealing with the validity of live-in relationship observed that, “‘Live-in relationship’ is a walk-in and walk-out relationship. There are no strings attached to this relationship, neither this relationship creates any legal bond between the parties. It is a contract of living together which is renewed every day by the parties and can be terminated by either of the parties without consent of the other party and one party can walk out at will at any time.” Further, the persons entering into such relationships are debarred from complaining of infidelity or immorality of the other partner.
In the case of Chanmuniya v. Virendra Kumar Singh Kushwaha, (2011) 1 SCC 141, the Supreme Court observed that “in those cases where a man, who lived with a woman for a long time and even though they may not have undergone legal necessities of a valid marriage, should be made liable to pay the woman maintenance if he deserts her. The man should not be allowed to benefit from the legal loopholes by enjoying the advantages of a de facto marriage without undertaking the duties and obligations.” Court also wanted to interpret the meaning of “wife” broadly under Section 125 of Cr.P.C. for claim of maintenance, so that even women in live-in relationship can claim maintenance. The Court further declared that a woman in a live-in relationship in entitled to claim any relief mentioned under Protection of Women from Domestic Violence Act, 2005.
The Supreme Court in the case of D. Velusamy v. D. Patchaiammal, AIR 2011 SC 479 held that, a ‘relationship in the nature of marriage’ under the 2005 Act must also fulfill the following criteria:
(a) The couple must hold themselves out to society as if they are spouses,
(b) They must be of legal age to marry,
(c) They must be otherwise qualified to enter into a legal marriage, including being unmarried and
(d) They must have voluntarily cohabited and held themselves out to the world as being akin to spouses for a significant period of time, and in addition the parties must have lived together in a ‘shared household’ as defined in Section 2(s) of the Act.
The Court further clarified that, “merely spending weekends together or a one night stand would not make it a ‘domestic relationship’.” It also held that “if a man has a ‘keep’ whom he maintains financially and uses mainly for sexual purpose and/or as a servant it would not, in our opinion, be a ‘relationship in the nature of marriage’.
The executive is not far away from taking reformative stance. The Malimath Committee Report[32] suggested that the meaning of “wife” within Section 125 of the Cr.P.C. need to be amended “so as to include a woman who was living with the man as his wife for a reasonably long period, during the subsistence of the first marriage.” Later, in October 2008, the Government of Maharashtra accepted the proposal of Malimath Committee Report.
In a landmark judgement that can reduce the stigma of living in a live-in-relationship, the Supreme Court on Monday, April 13, 2015 ruled out that couples living in live-in-relationships will be presumed legally married. The apex court also said that in case if the man dies, then his property will be inherited by his partner. Children born of live-in relationship are legitimate Bharata Matha & Others v. R. Vijay Rengiinaihan & Others, ILC-2015-SC-MAT. The historic verdict was given by the bench consisting of Justice MY Eqbal and Justice Amitava Roy. On November 28, 2013, the Supreme Court had held that live-in relationship is neither a crime nor a sin, while asking Parliament to frame law for protection of women in such relationship and children born out of it. Live in relationship not a crime Indra Sarma v. V.K.V. Sarma, SLP (Crl) No. 4895 of 2012.
Though there have been a few recent judgements regarding live-In relationships as discussed above, there are few issues which have not been addressed or not adequately addressed.
One of the main concerns which remain unclear is what length of time of cohabitation will enable the person to be qualified as domestic partner. While a casual “walk-in walk-out” relationship cannot qualify a partner for succession rights, long time-period of continuous cohabitation has been accepted as a marker for grant of successful succession or maintenance rights. It is necessary to statutorily make a fixed time or make differentiation between a “walk-in walk-out live-in relationship” and a live-in relationship which will make a person qualify for a succession rights. Another intertwined issue is the question of “proof of continuous cohabitation like married couple”. It is essential that the party represents themselves like married couples to the society and there has been social recognition to that effect. The Courts have specifically mentioned any negative evidence regarding the period of continuous cohabitation can weaken the case.
While it threatens the very notion of husband and wife and the cognition of marriage that enjoys high level of sanctity when it comes to India, it also tends to prop up adultery, as there is no such proscription that live in partners should be unmarried. Thus, a person might be married and be living with someone else under the garb of live in relationship.
Another question which is under debate is that live-in relationship promotes bigamy. The Court have addressed that a person needs to be unmarried to be granted maintenance rights.
Contrastingly, the Court has also held that in live-in relationship, there can be no complain of infidelity or immorality Alok Kumar v. State. Crl. M.C. No. 299/2009 MANU/DE/2069/2010, (Del. H.C. August 9, 2010). However, it is not clear, if bigamy is allowed under the person’s religion whether such claims can be sustained. Another contrasting problem, is that person who is deserted remains helpless in such cases where the persons lived into a bigamous relationship and the courts considers unmarried status to be one of the condition for granting maintenance. In such cases, the deserters go scot free, due to the loop-holes present in the law. According to the author, in case of long period of cohabitation, where the couples represent themselves as a married couple, there can be an exception in providing maintenance rights and grounds of the person to be unmarried will be considered as an exception. It is necessary to take a proper stand and differentiation should be made between the rights and liabilities that are in bigamous live-in relationships.
Even if rights of maintenance etc are provided to the live in female partner, there is no guarantee that she can actually avail those rights. Marriages grant social recognition, but there is no proof of live in relationship; a person can easily deny the fact of live in relationship to evade liability. In sum and substance the rights of woman remains precarious.
The Bombay High Court on 3rd December 2012, stayed till December 17 the proceedings in a case of domestic violence against family members of Rajesh Khanna by a woman claiming to have been in a live-in relationship with the late superstar[36].
The proceedings in a Metropolitan Magistrate’s Court at suburban Bandra were stayed by Justice K U Chandiwal, who issued notice to Anita Advani, the lady who claimed to have looked after the actor in the last few years of his life as a wife would do. The court was hearing a petition filed by Khanna’s actress wife Dimple and actor son-in-law Akshay Kumar challenging the processes started by the magistrate against them and other family members. Twinkle and Rinki, Khanna’s daughters, are also in the process of filing similar petitions.
Advani, in her complaint against Dimple and others, has claimed she was driven out of Khanna’s Bandra bungalow ‘Ashirwad’ after his death and sought maintenance from the actor’s estate.On the other hand, Dimple contended that she was the legally wedded wife of Khanna and as such no other woman can claim share in the wealth left behind by her husband.
The Magistrate, Dimple argued, should not have entertained the complaint which has made “baseless” charges.She contended that it was “unreasonable” for the Magistrate to even suggest that she and her family go in for a compromise with the complainant in which case he would refer the matter for mediation.
The Magistrate, while hearing Advani’s complaint, had earlier last week issued summonses to Dimple, her daughters Twinkle Kumar and Rinki Saran and son-in-law Akshay Kumar asking them to appear in person before the court to answer the allegations, which besides domestic violence includes forging Khanna’s will.Akshay Kumar supported Dimple’s contention that Advani had no right to claim any share from Khanna’s properties which is said to be to the tune of Rs 500 crores.
Kapadia’s counsel Gupta had argued that a womam in a live-in relationship with a married man cannot claim relief under the .He argued that Khanna and Advani’s relation can be at the most described as “adulterous”[37].
The law of succession depends on the religion of the deceased person. However, there may be confusion regarding the rights of children born out of inter-religious live-in relationships. These concerns need to be addressed by a proper mechanism.
An interesting issue regarding the caste of a child born to live-in partners, where male and female partners belonged to different castes, came before the Supreme Court in Sobha Hymavathi Devi v. Setti Gangadhara Swamy, AIR 2005 SC 800, Sobha’s mother Simhachalam, who belonged to Bagatha scheduled tribe in Andhra Pradesh, had a live-in relationship with Marahari Rao, an upper caste man and Sobha was born out of this relationship. Later on, the relationship had ended and Sobha was brought up by her mother and married to a person from Bagatha community. Sobha Hymavathi Devi was elected to the Andhra Pradesh Legislative Assembly in 1999 on a Telugu Desam ticket from Sringavarapukota constituency reserved for scheduled tribes. Sobha’s election was challenged by the defeated candidate on the ground that she did not belong to Bagatha community, which had been notified as a scheduled tribe community, because her father was an upper caste man. Sobha’s plea was that her father was not married to her mother and therefore, she should be treated as member of the community of her mother. She had further stressed that she was brought up as a part of Bagatha tribe and married to a man belonging to that tribe only. The Andhra Pradesh High Court drew a presumption of marriage between the father and the mother of Sobha because of long cohabitation in a live-in relationship. The high court held that she did not belong to Bagatha community and set aside her election from the reserved constituency. In her appeal challenging the high court judgement before the Supreme Court she had stated that her community would be determined by that of her mother and not father as there was no marriage between two. But the Supreme Court agreed with the view expressed by high court and observed, “We must say that on the evidence here, including the documentary evidence relied on by the high court, the presumption arising from long cohabitation of Marahari Rao and Simhachalam of a valid marriage between them, gets strengthened and there is no material circumstance which can be said to rebut such presumption arising from long cohabitation.”
The law on live in relationship need to demonstrate a clear cut picture keeping in mind the present social context along with the basic structure of tradition and culture that characterises Indian society. While the court in few cases granted the status of married couple to live in couple, in some cases court held that live in relationship does not cast any obligation on the couple, as the whole idea of live in relationship is to evade such bondage, evincing a penchant towards an obligation less, free society.
Nonetheless, another thought that seek attention is that if the law lobs same kind of obligation with respect to maintenance and succession as exist in the institution of marriage, then why will a couple prefer to get into a live in relationship, when the basis of getting into live in relationship is to evade all bondages and entanglement. A different point to be observed is that, if the rights under live in relationships and marriage are equated, it will bring in conflict the rights of wife if the person who is in relationship is already married and the rights of live in partner, secondly this will make the circumventing of liability much easier and matters more complicated by shuffling between the rights and liability under marriage- live in relationship and will lead to entanglement in judicial meanders if judicial discourse is taken.
Outside the legal arena, live in relationship also faces the social speculation; the tenor of live in relationship is the characteristic motif of metropolitan area, however, when we look at the masses that define India, live in relationship does not find consensus of majority and is accused of tampering with the Indian culture of values and morality.
Live-in-Relation would give rise to child pregnancy and has far reaching ramifications, adding despite its aim to restrict multiple partners. It would have an adverse impact on the youths and result in the spread of HIV/Aids. Therefore awareness amongst youth in most important.
Hence, as we observed many questions with respect to live in relationship remains unanswered. On the one hand it faces speculation from society and secondly legal status of live in relationship evinces contingency. The more clear approach and attitude of law and the changing time and stance of society will determine the future of live in relationship. Laws should be made by the parliament, which should keep a check on the practice of evading bondages.
Live in relationships should be granted legal status after specific period of its existence, providing the partners as well as the child born out of such relationship with all the legal rights of maintenance, succession, inheritance as available to a married couple and their legitimate offspring, also securing their rights after the dissolution of such relationship due to break up or death of one of the partner. The guidelines given in D. Veluswami v. D. Patchaimmal, AIR 2011 SC 479 is worth noting in this context and should be followed. Since, proving de facto live in relationship is difficult, the burden of proof should be relaxed, so that the rights that are conferred upon partners, specifically female live in partner can be availed. However, if the person in live in relationship is already married, then live in relationship should be considered as the second marriage, hence an offence of bigamy. This will ensure the rights and privileges in live in relationship without possessing any threat to the institution of marriage. A good legal system always tends to adapt to the gradual social changes. As such, the law cannot grope in dark, when the number of live in couples is increasing tremendously. The rights of live in couples should be legally recognised while ensuring that it does not impede upon the system of marriage.
© Chawla Publications (P) Ltd.
Media, the fourth estate referring to press, as it is called, is a force to reckon within bringing welfare policies of the State in public domain. Studies have revealed that out of many sources through which dissemination of vital information for legal empowerment percolates to the people at large, media accounts for the biggest chunk. Even when any calamity strikes be it natural or otherwise, media accepted its social responsibility to mitigate the sufferings of vulnerable sections of the society.
Even with regard to legal literacy communication strategies and in particular suggesting of legal remedies in case of bouncing of cheques and how to recover the money staked therein, role of media is laudable. How media can be more effective and useful in its enlarged role in modern context of unprecedented advancements in the field of information technology and in the atmosphere of winds of change blowing fast and the chill being felt in every sphere of life, has also been studied.
Key words:- Media tools, fourth estate, legal literacy, communication strategies, legal empowerment, legal services, information technology.
Media, the fourth estate, as it is called referring to Press, is a potent force to bring to the force the welfare policies of the State in public domain. It is expected because it is constitutionally mandated that every citizen should have basic facilities of life, like education, guarantee of employment, social security, food, shelter and health services. Legitimacy of this expectation is found in Article 21 of the Constitution of India.[1]
But it is debatable as to how far we have achieved this end ?
Of late, aggressive media campaigning has taken a lead role in disseminating information to the general public about their rights. As a vital and vibrant campaigner, it always rose to the occasion, whenever the time to do so, came. Be it, some natural calamity or constitutional crisis, the Media owned the social responsibility to mitigate the sufferings of the destitute, poverty stricken as also of most vulnerable sections of the society.
Multiple channels now are available in the electronic media for airing the views. Aggressive use of varied applications on mobile phones, can play a vital role of communication of the welfare policies of the Government as also of the rights available to the public with reference to the remedies for their enforcement.
On mobile phones several application are available like phone banking, e-ticketing, e-health & e-courts etc. After developing different texts to be used as messages targeting different segments of the society, applications like whatsapp can be used for legal empowerment of the people at large. In the electronic media as also through documentaries special programmes can be aired to popularize the concept of legal awareness and thereby the people themselves can be made potent force for development of the society.
The worst part of the matter is lack of knowledge of the common man about his legal rights. For want of adequate legal knowledge of procedure regarding accessibility of the relevant machinery, what to talk of petty crimes, at times even serious crimes are not reported to the police. The ground reality is that common man is scared of law and as a result has developed an indifferent and at times rather hostile attitude toward the legal aspects and policies of the government governing his life thereunder. Law is a friend, it is not a foe. Role of law as a mentor and a guide lacks depiction.
By now, it is strongly felt that the time has come to introduce legal education at different levels in the curriculum of students and that rather, it should be made compulsory. The irony is that even well educated persons most of the times lack basic and elementary knowledge of law.
In the factories, in business establishments and in other institutions including corporate houses as also in Government institutions, providing of basic knowledge of law to every one, should be on the top of the agenda.
Under the crushing weight of mounting arrears of cases, judiciary is over burdened but the stark reality cannot be ignored. Majority of litigants, having no knowledge of their legal rights and of machinery for their enforcement are vulnerable to the procedural niceties of the Court system. Heavy cause list of cases on the board also dissuades the Judicial Officers functioning in the Courts to convey information of legal rights to the public at large. It, however, is a matter of elation that a laudable step, which almost every Court takes, is about informing the accused in custody to avail the free of charge facility of a lawyer on the panel of legal aid counsel, to defend him.
It needs special emphasis that a litigant comes into contact with the Court system, only when some law suit is filed against him or he himself is to file the same in the Court or when the victim lodges an FIR in pursuance to which, the accused is produced before the Court. At that time, a litigant is not fine tuned to the Court procedure. At that point, as a communication strategy, a litigant is to be made aware about his various legal rights to make legal services available to him under the Legal Services Authority Act, 1987, as also under multiple other statutes.
Take for instance, where a woman, a senior citizen, a poor person, a trans-gender, a person belonging to SC/ST community etc. is before the Court, such person can be made aware about his rights and benefits available under the Legal Services Authority Act, 1987 and various other schemes thereunder:-
Few suggested modes of communication are outlined hereunder :-
Hon’ble Supreme Court took a lead role in taking the aid of Lok Adalats so as to tackle the ever increasing problem of mounting arrear of cases relating to the Negotiable Instruments Act, 1881. The legislature had provided remedy of even prosecution of the accused where a cheque is dishonoured for variety of reasons. But the legislature failed to comprehend the flurry of litigation, which such amendment in the Act made w.e.f. 1.4.1989, was to generate. No study or assessment had been made earlier for enforcement of such change in law. The result was, opening of the flood gates of litigation, making the Courts vulnerable. Heavy inflow of such cases, deflected attention of the Courts qua decision of other important cases. The Government had not contemplated the enormity of litigation, which the amendment in the Act was going to generate. No proportionate strength of judicial officers as also of supporting staff and of infrastructure was raised vis-a-vis the spurt in number of cases. A thought process though began to do something, but it was much later.
One of the modes conceived, to arrest the pendency of the said category of cases, was to send an intimation with the summons (for appearance of the accused or of witnesses), that if the accused so desires, he can settle the matter out of the Court, by paying the cheque amount to the complainant. Dishonour of the cheque provides two remedies to the complainant. First, to get back the money from the drawee of the cheque; and, second, to get the accused convicted as the Negotiable Instruments Act, 1881 is penal in nature as well. But invariably, since the transactions under this statute arise out of monetary transactions, major aim of the complainant is to get his money back. Civil remedies are time consuming and require affixation of Court fee stamp as well on the plaint but it is not the case while filing a complaint under Sections 138 and 142 of the Negotiable Instrument Act, 1881.
On making the litigants aware of their right to settle the cases without the intervention of the Courts, a large number of cases were decided at the initial stage itself, because the accused at the stage of receipt of summons itself decided to avoid the prosecution, when he came forward to pay the disputed amount to the complainant. This had its impact even on the pending cases. When the accused in such pending cases, came to know that the matter can be settled through the medium of Lok Adalat, the patch up between the parties had started taking place and as a sequel, it helped in restoration of the confidence of public and prevented the proliferation of litigation further.
Increase in number of cases, resulted in delayed decisions. Because of lack of innovations to provide rapid justice even genuinely wronged persons were fearful of the tardy and traumatic experience in the Courts. So as to make the Courts litigants friendly with commitment to provide fair, transparent and timely justice, the need of the hour is to make the court environment congenial and cordial for all the stake holders in the scheme of things. Processual re-engineering has already started to do away with redundancy and obsoletion. Extensive use of information technology and computerisation has started showing results.
Now a days, almost everyone, even poorest of the poor, owns a mobile handset. Even labourers and beggers possess mobile phones. This mode of communication, which is available to the vast sections of society, may be used as a tool to disseminate information about various legal aid schemes as also about other important matters. To achieve this end, the urgent need is to change the procedure so as to make it mandatory for every plaintiff in a civil case, and for every complainant in a private complaint criminal case, to submit mobile phone numbers of both the parties. It will not only cut down the delays in effecting the summoning process, but information even about latest developments in the fields of law, can be disseminated fast. Even, the courts may ask for the phone number of defendants or of the accused as the case may be, on their appearance.
Take instance of a latest ruling of 2014 of Hon’ble Supreme Court in case Dashrath Roop Singh Rathore Vs. State of Maharastra, 2014(9) Scale 97 : 2014(4) Recent Apex Judgement : 2014(3) RCR (Criminal) 904 : 2014(4) RCR (Civil) 145 (SC) where a three Judges Bench of Honble Supreme Court of India by laying down various principles of law on the territorial jurisdiction of the Courts to entertain complaints under Section 138 of N.I. Act 1881, rewrote the entire concept by holding that it is only the Court of the place of banker of the accused, where the cheque is dishonoured that has the territorial jurisdiction to try and entertain the complaint. Further, directions were given to all the Courts to return those complaints, where they lacked jurisdiction excluding the cases, where the trial had yet not commenced in terms of Section 145(2) Cr.PC after serving notice of accusation upon the accused. This single judgement in itself has very wide ramifications.
Had mobile phone numbers of the parties been available with the courts, which in pending cases are not available, valuable time, money and energy could have been saved by informing the litigants about the change in law and about consequent steps to be taken by them. On pronouncement of this ruling by the Honble Apex Court, the Courts where such types of cases are pending, then could establish contact with both the parties for giving them the information about the ruling so as to enable the litigants to take further action as permissible in law. Though the Courts and Judicial Officers manning those, are always neutral but merely by giving valuable information to the litigants so as to make them aware of their rights, their neutrality is not going to be questioned as motives cannot be attributed to them because the system to be put in place, is to be available to all the litigants.
Likewise, in any criminal trial, a valuable information by way of SMS message, to complainant can go viral that after conviction of accused, he has right to get compensation. It is seen that complainant at times is totally unaware of the stage of prosecution of the accused in the Court of law.
Now after amendment in the Code of Criminal Procedure, as per proviso to Section 372 Cr.P.C., an independent right is available to a complainant to file appeal. The said proviso for ready reference is appended as under :-
“Provided that the victim shall have a right to prefer an appeal against any order passed by the Court acquitting the accused or convicting for a lesser offence or imposing inadequate compensation, and such appeal shall lie to the Court to which an appeal ordinarily lies against the order of conviction of such Court.”[1]
Definition of victim has also been clarified in Section 2(wa) of the Code of Criminal Procedure, 1973. For quick reference, it is reproduced as under:
[“victim” means a person who has suffered any loss or injury caused by reason of the act or omission for which the accused person has been charged and the expression “victim” includes his or her guardian or legal heir.][2]
Complainant also has an independent right to engage a counsel. Thus, a time has come, where not only the police should give information to the complainant that he does have such right but the judiciary must also own its duty to inform him about his said right.
Bar council of India, State Bar Councils, lawyers and various NGOs take the lead in promoting legal awareness and legal literacy. In India as per the Legal Service Authority Act, 1987, the National Legal Service Authority (NALSA) has been designated to take appropriate measures to spread legal literacy and legal awareness amongst the people of India. In Indiana, in the United States of America, outreach for Legal Literacy is a community service programme, in which law students teach the fifth grades in local elementary Schools.
Legal awareness can empower people to demand justice, seek accountability and enforce specific remedies for redressal of the wrongs done to them. Legal needs always stand to become crisis oriented because of ignorance of laws and non availments of benefits thereunder. Approaching of a counsel for advice in time is out of question, without legal literacy. Rather, public remains alienated from law, legal system and legal enforcement agencies. Absence of legal literacy in fact, blocks peoples access to justice.
In India, various legal literacy schemes are being floated and spread through the medium of District Legal Services Authorities at the District and Sub Division Legal Service Committees at the Taluka level. These grass root legal services agencies, as of now, are leading from the front by performing multiple functions of planning, organising and popularising the concept of legal literacy. In Haryana, District Legal Service Authorities are administered by the District & Sessions Judges as their Chairmen, while an officer of the level of a Chief Judicial Magistrate as a whole time functionary acts as a secretary of a District Legal Services Authority in a district. The need of the hour is to have a relook on the functioning and structure of the same and redefine their roles by functional and administrative re-engineering.
Hon’ble Supreme Court of India in Delhi Domestic Workers Women’s Forum Vs. Union of India & others, 1995 SCC (1) 14 : 1995(1) RCR (Criminal) 194 (SC) gave very valuable directions, when in order to mitigate the sufferings of women, who are sexually victimised as also in order to check and balance the power of the police, it mandated that a system is to be put in place to assist the victim so that the victim is able to give true account of her trauma. Haryana Legal Services Authority took a lead and acting upon this mandate of Honble Apex Court, formulated a scheme to provide a lady prosecuting legal aid lawyer to every such female victim. Going a step forward, even child victims were included in this scheme. Accordingly, a panel of female legal aid lawyers was prepared by each District Legal Services Authority to help female and child victims. It was felt that recording of the statement of the stated victims in presence of a female legal aid prosecuting counsel would give an additional guarantee of its correct recording as also would generate confidence in the victim that whatever happened has been recorded verbatim. In this way, a laudable step has been taken, which could reduce the pains and pangs of the victims so as to wipe the tears of these sufferers, by creating inroads in the powers of the investigating police which till today has not been able to become people friendly by exuding faith amongst the common men. As per recent amendment brought in Section 154 Cr.PC :
1. Statement of lady victim is to be recorded by a lady police officer;
2. If such female victim is mentally or physically disabled, then statement of the victim is to be recorded at the residence of such victim or at a place of her choice, in presence of an interpreter or a special educator as the case may;
3. Recording of such statement is to be videographed; and,
4. Additionally, statement of such victim is also to be got recorded from a Judicial Magistrate as soon as possible under Section 164 Cr.P.C.[*]
Sequelly, consequent amendment in Section 164 Cr.PC has also been made whereby for recording statement of a mentally or physically disabled victim, help of an interpreter or special educator is necessary.[*]
Medical examination of the victim has been made mandatory.[*]
Such amendment has also been made in Section 161 Cr.PC. As per this amendment, when such victim is not the informant or the complainant (who initiated the process of reporting the matter) but rather is a witness whose statement thus is to be recorded, even then, such statement is to be recorded by a lady police officer.
It is already provided in Section 154 Cr.PC that copy of such statement is to be provided forthwith to the victim free of costs. In case incharge of any police station refuses to record statement of a victim or in the manner stipulated, then victim is legally authorized to send the substance of such information in writing and by post to the Superintendent of Police, concerned, who on being satisfied that such information discloses commission of a cognizable offence may either investigate the case himself or direct an investigation to be made by any other police officer under him.
By amending Section 114A of Cr.PC presumption of absence of consent of victim in certain cases of rape has been introduced.[*]
By amending Section 197 Cr.PC, it has also been prescribed that if such an offence is alleged to have been committed by a public servant, then no sanction as prescribed in terms of Section 197 Cr.PC is required.[*]
Where statement of a victim who is below the age of 18 years is to be recorded in the Court, provision has been made that such victim is not to be confronted by the accused.[*]
Even expeditious trial of such offences has been ensured by mandating a period of only two months from the date of filing of the charge-sheet.[*]
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Another important function, which is being performed by the District Legal Service Authority is to decide the applications for compensation to the victims, who are wronged by commission of some crime against them.
Section 357A providing for compensation to the victims, introduced w.e.f. 31.12.2009 reads as under :
“357A.Victim compensation scheme. (1)Every State Government in co-ordination with the Central Government shall prepare a scheme for providing funds for the purpose of compensation to the victim or his dependents who have suffered loss or injury as a result of the crime and who require rehabilitation.
(2) Whenever a recommendation is made by the Court for compensation, the District Legal Service Authority or the State Legal Service Authority, as the case may be, shall decide the quantum of compensation to be awarded under the scheme referred to in sub-section (1).
(3) If the trial Court, at the conclusion of the trial, is satisfied, that the compensation awarded under section 357 is not adequate for such rehabilitation, or where the cases end in acquittal or discharge and the victim has to be rehabilitated, it may make recommendation for compensation.
(4) Where the offender is not traced or identified, but the victim is identified, and where no trial takes place, the victim or his dependents may make an application to the State or the District Legal Services Authority for award of compensation.
(5) On receipt of such recommendations or on the application under sub-section (4), the State or the District Legal Services Authority shall, after due enquiry award adequate compensation by completing the enquiry within two months.
(6) The State or the District Legal Services Authority, as the case may be, to alleviate the suffering of the victim, may order for immediate first-aid facility or medical benefits to be made available free of cost on the certificate of the police officer not below the rank of the officer-in-charge of the police station or a Magistrate of the area concerned, or any other interim relief as the appropriate authority deems fit.”
Now w.e.f. 3.2.2013 by addition of Section 357B Cr.PC, it has been provided that this compensation is to be in addition to payment of fine to the victim.[*]
Even for treatment of victims a special provision has been added making it mandatory for every hospital to treat such victims free of costs.[*]
Hon’ble Supreme Court in Ankush Shivaji Gaekwad Vs. State of Maharastra, 2013(6) SCC 770 : 2013(3) Recent Apex Judgement 478 : 2013(2) RCR(Criminal) 1036 in and in latest case of Suresh & Others Vs. State of Haryana, Cr. Appeal No. 420 of 2012, D/d. 28.11.2014 : 2014(6) Recent Apex Judgement 530 : 2015(1) RCR (Criminal) 148(SC), has ruled that it is mandatory duty of the criminal Court to provide compensation to the wronged person, after the accused is held guilty. There is a concept of interim compensation as well. The Court is required to assign reasons where it does not pass such order.
Already existing age old provision was not considered proper to mitigate the sufferings of the victims. So the legislature added Section 357A in Cr.P.C., wherein District Legal Service Authority, has been entrusted the task of providing adequate compensation to the victims of crime as per the exigencies of situation. The criminal Court while convicting the accused for any offence, under Section 357A of Cr.P.C., shall also recommend for compensation to the victim.
The Government of Haryana vide notification dated 3rd April, 2013 framed the victim compensation scheme for providing funds for the purposes of compensation to the victims or his/her dependents, who have suffered loss or injuries as a result of crime and who require rehabilitation. It is the State Legal Service Authority, which shall be accountable for its funding. Any victim can even directly move to the legal services authorities for compensation. Such compensation schemes have been floated by almost every State and have functional.
The big question mark is on the accessibility of this Scheme by the concerned people. The common man is not aware about this Scheme. It is possible that even some legal men may have missed this valuable provision. Sequelly, it becomes the duty of legal services authorities that large scale publicity of these Schemes is also made. This may be through the help of law interns, para-legal volunteers, social activists, NGOs etc. It is time to act and fast. Even slums, and other thickly populated areas can be targeted, where such types of policies can be pupularized.
Three Judges Bench of Hon’ble Supreme Court in Damodar S Prabhu Vs. Sayed Baba Lal (H), SLP (Cr) No. 6369 of 2007 arising out of criminal appeal Nos. 964-966 of 2010 : 2010(3) Recent Apex Judgement 180 : 2010(2) RCR(Criminal) 851 giving a landmark judgement plugged the holes in the Negotiable Instruments Act, 1881, and elaborated Section 147 of the said Act, where one of the directions given was that the Court is to make the accused aware that he can get the offence compounded by signifying his intention to do so on the summons itself. If application for compounding the offence is moved by the accused at the initial stage, or at a later stage, compounding of offence can be done but by paying certain percentage of the cheque amount at the level of different Courts. The said amount is to be deposited with the legal services authority at the stated level of the Courts. To better disseminate the nuances of said directions, the need of the hour is to spread such like directions and information by doing “Nukkad Nataks”, drama, plays etc.
School and colleges are the nurseries of our future. A legally equipped student will become a responsible citizen of society and can become a potent instrument to pass on the information to others. So, what we need is the elementary knowledge of law at the primary school level as also at the matriculation and higher secondary level. Detailed lessons, which should be blend of different laws with their enforcement machinery should be put in place. It is old legal adage that ignorance of law is not an excuse, but at the same time, even many legal literates do not know all the laws. So, lack of awareness of law among the public will increasingly make the task of law enforcing agencies tougher and still tougher unless strategies for communication of different laws and their enforcement machinery is put in place.
There are examples, where the governments have promoted long duration legal literacy missions and awareness campaigns. Even some institutions arrange for legal literacy events and deliberations. Legal awareness can also be achieved through legal literacy camps, lectures and interactive sessions, workshops and short duration crash programme etc. Knowledge of elementary laws to para-legal activists and volunteers may also be imparted. Other methods are road shows, radio-talks, reality shows, street-theater-plays, different campaigns, publication of relevant books in easily understandable languages, booklets and periodical, posters and charts dealing with particular laws, distribution of pamphlets, stickers, display of painting and hoardings, folk songs, rangoli, comics etc.
Display boards at strategic places of public activities like bus stands, railway stations, parks, markets, malls, government offices, police stations , Courts etc. can be used to spread the knowledge of laws and thus, mindset of people regarding such offences can be changed.
Outside factories and business houses, labour laws related issues can be highlighted. Likewise, out side hospitals, Bus stands, Railway Stations and Airports, there can be publicity as to what is medical negligence and what are settled legal issues before the motor accident claims Tribunals.
At this juncture, reference may be made to decision of directions given by Hon’ble Supreme Court of India in Jai Parkash Vs. National Insurance Company, 2010 ACC 1 (SC) : 2010(1) Recent Apex Judgement 191 : 2010(1) RCR(Civil) 635 in order to mitigate the sufferings of roadside victims or the legal heirs of the deceased victims. The concept of AIR (Accident Information Report) has been introduced whereby it is the duty of concerned police station to submit all the papers including FIR to the concerned MACT, giving the details of accident and particulars of the victim/s, deceased, LRs, drivers, owners, insurance company, so that MACT in turn may treat the said report as a full fledged petition after appearance of the parties. This is a landmark judgement to communicate the legal rights of injured as well as of LRs of deceased to get compensation. Knowledge of law and respect for law are two distinct matters having separate parameters. These are complementary and supplementary to each other; unless a person knows laws, how he is supposed to respect those?
Legal literacy is key to legal empowerment of We, the people of India. The Press has a special role to play. Everyone is to contribute by spreading knowledge and information about basic knowledge of such laws and about way and means of their enforcement. Democracy will be functional and vibrating, only on legal empowerment of everyone.
© Chawla Publications (P) Ltd.
Sex is seen as a forbidden subject in the social fabric of India, being linked to immorality, indecency etc. The Indian legal system has, to a large extent, upheld this social morality and made provisions in this regard. One such provision is the criminalization of pornography. The word “pornography” comes from the Greek word “pornographos” literally meaning writing about prostitutes[1]. One of the commonly accepted definitions of “pornography” in modern times defines it as sexually explicit material (verbal or pictorial) that is primarily designed to produce sexual arousal in viewers. When value judgements are attached to this definition, pornography is perceived as sexually explicit material designed to produce sexual arousal in consumers that is bad in a certain way. There are many approaches to define pornography such as any sexually explicit material that is bad, although a particularly dominant approach has been to define pornography in terms of obscenity. This is also the practice followed in India, where pornography is seen as an aggravated form of obscenity.
Pornography on the Internet is available in different formats. These range from pictures and short animated movies, to sound files and stories. The Internet also makes it possible to discuss sex, see live sex acts, and arrange sexual activities from computer screens. Although the Indian Constitution guarantees the fundamental right of freedom of speech and expression, it has been held that a law against obscenity is constitutional. The Supreme Court has defined obscene as “offensive to modesty or decency; livid, filthy, repulsive.
In Indian film and television, there is currently a decrease in the taboo related to the depiction of sexuality. However, many Bollywood films, with an emphasis on the rich, urban class, rarely depict the true values that most Indians have about sex. There is a great taboo on sex in India due to a variety of reasons, many of which involve cultural values either native to India or those that conquering civilizations (such as Islam or Victorian England) have imported to India.
According to Google Trends, the number of searches for porn from India doubled between 2010 and 2012; in 2011, seven Indian cities were among the top ten in the world searching for porn. Greater access to high-speed Internet would explain much of that rise. The sharp growth in Smartphone owners has also fuelled the porn boom. A survey by the Indian Market Research Bureau revealed that one out of five mobile users in India wants adult content on his 3G- enabled phone. It isn’t just adults who are addicted to porn. A survey of public schools in Delhi conducted by Max Hospital revealed that over 47 per cent students discuss porn every day.
There is no law against watching pornography in India, though there are strict laws against transmitting or distributing it. There is no case per se for banning the viewing of pornography. Yet, in a society which continues to, in many ways, be repressive about sex-there is very little sex education in schools and parents rarely talk about it to children openly-pornography can lead people, particularly youngsters, to have a distorted perception about sex. It is often violent, perverted and exploitative. The Indian porn industry, unlike its Western counterparts, is completely unregulated. Addiction to pornography can lead to dysfunctional relationships in the real world.
Like in many other open societies, pornography has been a perennial problem which authorities continue to battle. The arrival of the Internet has compounded the problem immensely. Without being overly prudish or repressive, there is a need for education and regulation to moderate its insidious influence.
Former C.J.I Justice K.G. Balkrishnan said in a national meeting in Delhi in January 2010 that there is an urgent need to ban websites that circulate pornography. There are certain practical problems faced by the governments in imposing a ban on pornography and if governments are not able to impose a strict ban on porn websites they should indeed issue strict guidelines to websites that porn advertisements/porn content should not be displayed on websites without the prior permission of viewer i.e. online porn or porn advertisements should not be shown without his permission, warning should be given to viewers when they enter the adult website. So, government can show this much sincerity if they are unable to impose a complete ban on pornography.
Though the amendment of 1969 brought about changes to obscenity law, the primary object of the 1969 amendment of section 292 was to prevent circulation of and traffic in obscene literature. It was specifically to restrict communication of certain types of materials based on their content. The amendment did not still lay down the definition of obscenity. Though there is no specific provision in any statute that directly deals with pornography, it has been brought within the purview of Section 292[1] dealing with obscenity in the Indian Penal Code, 1860 (IPC) that imposes criminal liability for sale, distribution etc. of obscene material. This section was introduced by the Obscene Publications Act, 1925 to give effect to Art. I of the International Convention for the Suppression of the Circulation of and Traffic in Obscene Publications signed by India in 1923 at Geneva[2]. Pornography has also been prohibited under the Information Technology Act, 2000(IT Act’)[3] and the Indecent Representation of Women (Prohibition) Act, 198617 (IRWP Act).
What constitutes obscenity in electronic form according to section 67 of IT Act, 2000?
To understand what constitutes obscenity in the electronic form, let us analyze the relevant terms:
Any material in the context of this section would include video files, audio files, text files, images, animations etc. These may be stored on CDs, websites, computers, cell phones etc.
Lascivious is something that tends to excite lust.
Appeals to, in this context, means “arouses interest”.
Prurient interest is characterized by lustful thoughts.
Effect means to produce or cause some change or event.
Tend to deprave and corrupt in the context of this section means “to lead someone to become morally bad”.
Persons here refers to natural persons (men, women, children) and not artificial persons (such as companies, societies etc).
Having understood these terms, let us analyze what constitutes obscenity. To be considered obscene for the purpose of this section, the matter must satisfy at least one of the following conditions:
1. It must tend to excite lust, or
2. It must arouse interest in lustful thoughts, or
3. It must cause a person to become morally bad.
The word obscene has not been defined in IPC as the concept of obscenity differs from society to society and from time to time. The test of obscenity has been given in Section 292 (1) of IPC which is based on an 1868 English decision in the Hicklin Case R.v. Hicklin, (1868) LR 3 QB 360 where the test for obscenity was laid down by Cockburn, C.J. as follows:
“.the test of obscenity is this, whether the tendency of the matter charged as obscenity is to deprave and corrupt those whose minds are open to such immoral influences, and into whose hands a publication of this sort may fall. … it is quite certain that it would suggest to the minds of the young of either sex, or even to persons of more advanced years, thoughts of a most impure and libidinous character.”
It has also been argued that the morality that is being considered in the IPC has little to do with any Indian tradition, but has been influenced by British rulers Christian morality[1]. According to this morality, sex is a sin and is inherently dirty and the only kind of permissible, yet unmentionable sex is that within marriage and that too for procreation alone. George Bestialle, The Accursed Share: Vol. II the History of Erotism134 (1976) as cited in Wolfson, supra note 1, 1037, 1044 The IPC was framed in 1860, when this version of morality was imposed on Indians by the British through various means including laws. This has been reflected in Section 292 (1) of the IPC where “obscenity” has been explained as that which is “lascivious or appeals to the prurient interest or tends to deprave or corrupt persons”.
The IRWP Act defines indecent representation of women as the depiction of the figure of women as to have the effect of corrupting public morality.[1] Thus the objective of such regulation of indecent representations as in pornographic materials is closely tied to the morality which in turn is automatically assumed to be predefined and commonly agreed upon. Section 5 of the IRWP Act gives wide-ranging powers to any gazette officer whereby he can, with a warrant, enter and search anyones residence and seize anything he thinks is indecent, including pornographic material.[2] The power to exempt the material on grounds of being literary, artistic, scientific or religious has been vested with such Officer and even if the court later decides that the seizure was wrong, Section 9 of IRWP Act protects the officer from any legal action. Thus, a government officer is empowered to harass any citizen, and the citizen has no way to seek redressal.
As soon as a law is passed declaring a certain activity to be criminal, people engaged in it tend to operate underground. Same is the case with pornography. It can also lead to abuse of power by the police and government officials who work in collusion with the violators of law.
This is evident from the thriving black market for pornography. Quoting various studies done in the past, the Indira Gandhi Institute of Development Research (IGIDR) estimates that Indias black economy is around 18-21 percent of the GDP (gross domestic product)[1]. From this, tax evasion accounts for only part of the black economy whereas the major black income is generated from illegal activities such as smuggling, trafficking in illicit drugs, pornography and gambling. This black market for pornography or obscenity has become a multibillion dollar industry even outside India[2].
The entire gamut of Indian legislations dealing with obscenity has been upheld as valid under Art. 19(2) of the Indian Constitution which allows for the State to impose reasonable restrictions on the Right to freedom of speech and expression on grounds of inter alia public order, decency and morality The Constitution of India, 1950, Arts. 19 (1) (a), 19(2)..The only judicial pronouncement Ranjit D Udeshi v. State of Maharashtra AIR 1965 SC 881 – Law Finder Doc Id #110586 on the issue of the clash between obscenity and freedom of speech and expression recognized that the cherished right on which our democracy rests is meant for the expression of free opinions to change political or social conditions and for the advancement of human knowledge. The Court, however, went on to uphold the validity of Section 292 of the IPC on the ground that it manifestly embodies a restriction in the interest of public decency and morality and the law against obscenity, of course, correctly understood and applied, seeks no more than to promote these values.
This approach by the Legislature as well as the Judiciary has completely failed to demonstrate how private use and enjoyment of pornographic material violates public decency and morality. The theoretical basis for this approach seems to be grounded in the harm principle, but the State has failed to demonstrate what kind of harm, if any, is caused by the private actions of consenting adults in manufacturing and viewing pornography. The State has also failed to demonstrate the inherent
immorality of sexual expression and sexual stimulation through pornographic works. As stated previously, pornography, in its limited acceptable meaning, can serve as a positive contribution towards sexual freedom and liberation of individuals, which would ultimately lead to the healthy development of adults in the society. In the absence of any such exposition, the right to moral independence is violated by legislation whose only justification is the pain and disgust experienced by some people when others read or enjoy pornography.
In Naz Foundation v. Government of NCT of Delhi (2009) 160 DLT 277 : 2009(3) R.C.R.(Criminal) 523 – Law Finder Doc Id #198337. The Delhi High Court took the right of privacy to a new level. The Court held that privacy recognizes a right to a sphere of private intimacy and autonomy which allows us to establish and nurture human relationships without interference from the outside community. The way in which one gives expression to ones sexuality is at the core of this area of private intimacy. If, in expressing ones sexuality, one acts consensually and without harming the other, invasion of that precinct will be a breach of privacy.[1] Now, since manufacturing and viewing of pornography are medium of expression of ones sexuality, it must fall within the ambit of right to privacy, provided it is manufactured and viewed privately by consenting adults and thereby not causing any harm to the others.
The other reason for these legislations abrogating individual freedom and autonomy is their treatment of sexually explicit material, that is, bringing everything under the overarching umbrella of obscenity without differentiating between private and public consumption of such material, as well as the content of such material which usually ranges from sexual eroticism, obscenity, pornography, violent and demeaning pornography and child pornography. Identifying this difference in degree could very well be the solution to some of the problems highlighted above. To call something obscene, in the standard use of that term, is to condemn that thing as blatantly disgusting. The corresponding term pornographic, on the other hand, is purely descriptive referring to sexually explicit writing and pictures designed entirely and plausibly to induce sexual excitement in the reader or observer.
To use the terms “obscene” and “pornographic” interchangeably, is to beg the essentially fundamental and controversial question of whether any or all pornographic materials are really obscene. Essentially, whether any given acknowledged bit of pornography is really obscene is a logically open question to be settled by argument and not by a definitional fiat.
Some jurisdictions like Canada, the US, UK etc. have at least tried to tackle some of these issues through their legal regimes. The US Supreme Court in Miller v. California 38 L Ed 2d 128: 413 US 15 (1972) 413 US 25 (1973) laid down the contemporary community test to define an obscenity offense, which allowed the state considerable latitude while making laws on obscenity keeping in mind the understanding of the community. Applying this rule, the court held that in the absence of distribution of the obscene material to minors or the obtrusive exposure of it to unwilling adults Billy Jenkins v. State of Georgia, 41 L Ed 2d 642: 418 US 153 (1973) the First and the Fourteenth Amendments[1] of the US Constitution prevents the state and federal governments from any attempt to wholly suppress or ban sexually explicit materials merely on the basis of their obscene contents.
The concept of contemporary community test was first acknowledged in Indian scenario in the Indian Supreme Court decision, Ajay Goswami v. Union of India (2007) 1 SCC 143 : 2007(1) R.C.R.(Civil) 633 : 2007(1) S.C.T. 554 : 2007(1) R.A.J. 767 – Law Finder Doc Id #125174. In this case the court held that the test of community mores and standards is outdated in the context of the internet age which has broken down traditional barriers and made publications from across the globe available with a click of the mouse and hence in judging whether a particular work is obscene regard must be had to contemporary mores and standards.
The impact of obscenity laws in India can be seen in the unfettered discretion exercised by the Government to ban films, books and other materials on the pretext of immoral or objectionable content. The most glaring instance of obscenity laws being used to subvert individual freedom was found in the Ranjit Udeshi case Ranjit D. Udeshi v. State of Maharashtra AIR 1965 SC 881 – Law Finder Doc Id #110586 where the sale of Lady Chatterleys Lover (unexpurgated edition) was banned and the appellants who were selling the books were imprisoned.
The Vagina Monologues, an episodic play by Eve Ensler that explores female sexuality through individual women telling their stories in the form of monologues, was banned from being shown in Chennai as the Chennai Police found parts of the script objectionable that could disrupt public order. Kamasutra: A True Love Story, a film by Mira Nair, had 40 cuts from the original version as prescribed by the Indian Censorship Board because of its sensuous contents before it could be shown in Indian theatres. Even the film Bandit Queen by Shekhar Kapur1 CC, based on the real life story of a dacoit Phoolan Devi ran into trouble when Delhi High Court banned it for its obscene content; however the Supreme Court overruled it and granted it a certificate of exhibition A (i.e. adult films) Bobby Art International v. Om Pal Singh Hoon, (1996) 4 SCC 1 – Law Finder Doc Id #86681.> The most recent and notorious use of such paternalistic interventions by the State occurred when the Government banned the cartoon – porn site Savita Bhabhi which is an adult cartoon strip featuring a married Indian womans sexual adventures.[1]
Be it in any of the cases discussed above, the decency and morality of society that is affected by the obscene material is the fulcrum of the Courts argument. But the morality that these courts stress upon seems more like an illusionary, predefined concept that everyone has agreed upon. The questions as to what exactly constitute this morality, and who set the principle to determine it has been left unanswered. The line demarcating the decent from the obscene is still vague. The statutes, be it IPC or the IRWP Act has merely copied the age-old English Law and the set of morals they were then based upon. The laws in England have changed but the Indian law still remains stagnant. The growth of black market for pornographic materials has clearly shown the ineffectiveness of these laws.
Amateur pornography or sexually explicit material which is made and put online either as part of the porn industry, which is not very large especially in comparison to the global North, or by people themselves, is a relatively new phenomenon assisted by digital technologies and the Internet. In the last decade, the leaking of such material, and consequently the swarm of moral, ethical, social dilemmas that have arisen has led to most of the scandals. It is these scandals that are literally pushing the category of pornography out of the grey zones of being a public secret; out of rampant and unexamined illegality into the realm of the law – its imperatives, violence and descriptive plenitude.
• Even “soft” porn is harmful to everyone.
• All pornography desensitizes the viewer.
• Pornography is addictive.
• Pornography degrades marriages.
• Pornography increases crime in dangerous offenders.
• Pornography encourages and facilitates other crimes.
• Harm to the Soul
• Harm to Personal Morality and Chastity
• Harm to Public Morality
• Harm of Violence toward Women
• Harm to Children causes Child Molestation.
• Harm of stimulations resulting in Rape
• Harm of Contracting AIDS and other Venereal Diseases in Peep Show Booths and Spreading the Same to the Public
• Harm to Performers in the production of porno films and videos
• Harm to Performers in Nude Dancing Establishment.
• Harm to innocent persons criminally assaulted and murdered by those stimulated by porn, including Serial Murderers.
Child and adolescent exposure to pornography is a controversial issue. Questions about the contribution of pornography to deviant sexual behaviour, including sexual assault, negative attitudes towards women, and the acceptance of deviant or aggressive sexual behaviour among peers, have been studied for decades. Results are mixed, with some investigators arguing for clear and consistent effects of exposure to pornography and subsequent sexually aggressive attitudes and behaviours, while others describe null or inconclusive findings. With specific relevance to young people, there is the additional concern of negative effects on facets of sexual development, such as sexual callousness, for those who are exposed to pornography.
Estimates suggest that up to 90% or more youth between 12 and 18 years have access to the Internet. Concern has been raised that this increased accessibility may lead to a rise in pornography seeking among children and adolescents, with potentially serious ramifications for child and adolescent sexual development. Using data from the Youth Internet Safety Survey, a nationally representative, cross-sectional telephone survey of 1501 children and adolescents (ages 10-17 years), characteristics associated with self- reported pornography seeking behaviour, both on the Internet and using traditional methods (e.g., magazines), are identified. Seekers of pornography, both online and offline, are significantly more likely to be male, with only 5% of self-identified seekers being female. The vast majority (87%) of youth who report looking for sexual images online are 14 years of age or older, when it is developmentally appropriate to be sexually curious. Children under the age of 14 who have intentionally looked at pornography are more likely to report traditional exposures, such as magazines or movies.
The majority of pornography studies have been conducted with adults. This is largely due to the ethical and legal considerations of exposing children and adolescents to potentially harmful material. A handful of adolescent studies suggest no relationship between pornography and behaviour. For example, a retrospective study of adolescent sex offenders found no relationship between prior exposure to pornography and the number of victims. Additionally, in a more intensive interview with a sub-sample of youths, the majority of offenders denied that their use of pornography in any way led to the subsequent sex crime. Clearly, more research is needed about child and adolescent consumption of pornography. Importantly, as the Internet is used by more and younger people, the effects of access to and exposure of online pornography on child and adolescent development will be a child and adolescent health issue of increasing importance.
In 2005, two teenagers frolicking were captured on a mobile phone camera, and the clip circulated first through mobile phones and then subsequently on the Internet. The clip sparked a phenomenon of hidden camera an paradoxical mix of anxiety and thrill was possibly grasped at slightly in Anurag Kashyapd mobile phone clips – a booming pornographic enterprise on the Internet now. For a split second, it seemed like any kind of desire, even love could be rendered pornographic, captured in a ubiquitous medium and transmitted through the country. That Dev.D, where Chanda – the prostitute is the one depicted as the unknown girl who was part of the MMS clip.
When an adolescent boy compulsively views pornography, his brain chemistry can become shaped around the attitudes and situations that he is watching. Sadly, pornography paints an unrealistic picture of sexuality and relationships that can create an expectation for real-life experiences that will never be fulfilled.
Pornography shows us a world where relationships mean nothing and immediate sexual gratification means everything. Therefore, the adolescent viewer’s brain is being wired to expect that sex and relationships are separate from one another, and that men and women’s bodies should be sexually exaggerated as they are in porn–which can lead to shame about one’s own body as well as failure to be aroused by the bodies of others.
Psychologists have identified a five-step pattern in pornographic addiction. The first step is exposure. Addicts have been exposed to pornography in many ways, ranging from sexual abuse as children to looking at widely available pornographic magazines.
The second step is addiction .People that continually exposes them to pornography “keep coming back for more and more” in order to get new sexual highs. Dr. James McCough (University of California at Irvine) says that “experiences at times of emotional or sexual arousal get locked in the brain by the chemical epinephrine and become virtually impossible to erase.”
A third step is escalation. Previous sexual highs become more difficult to attain; addicts therefore begin to look for more exotic forms of sexual behaviour to bring them stimulation. A fourth step is desensitization. What was initially shocking becomes routine. Shocking and disgusting sexual behaviour is no longer avoided but is sought out for more intense stimulation. Concern about pain and degradation gets lost in the pursuit of the next sexual experience. A fifth step is acting out the fantasies. People do what they have seen and find pleasurable. Not every pornography addict will become a serial murderer or a rapist. But many do look for ways to act out their sexual fantasies.
• Multiplied incidents like the above graphically illustrate how the $8 billion-per-year porn industry has carved inroads into American life:
• Nearly 900 theaters show X-rated films and more than 15,000 “adult” bookstores and video stores offer pornographic material, outnumbering McDonalds restaurants in the U.S. by a margin of at least three to one.
• Each year, nearly 100 full-length pornographic films provide estimated annual box office sales of $50 million.
• Approximately 70% of the pornographic magazines sold eventually end up in the hands of minors.
• About 1.2 million children are annually exploited through child pornography and prostitution.
• In the recent fairly progressive judgement on M.F. Hussains painting, this definition was reiterated, giving some degree of distinction to the category of pornography apart from it being an aggravated form of obscenity and to say that it is a class of objects, images, paintings, videos designed for sexual arousal, while other material which may or may not be obscene is layered with other meanings (aesthetic, patriotic, narrative). But as such it is not a much more evocative definition than “dirt for dirts sake”.
Unlike moral conservatives, who object to pornography on the grounds of the obscenity of its sexual explicit content and its corrosive effect on the conservative way of life, the primary focus of the feminist objection to pornography is on the central role that pornography is thought to play in the exploitation and oppression of women and children. Anti-pornographic feminists focus on its ideological role in maintaining gender relations that harm the status of women generally as well as individual women victimized by the violence that is sanctioned and encouraged by pornographic materials. The central claim is that society is justified in interfering with the freedom of mentally competent adults to say and do what they wish only when their conduct will cause harm to others. This has come to be known as the liberty principle or harm principle; and it forms the cornerstone of the traditional liberal defense of individual freedom
At the root of this threat is a new definition of pornography, which has emerged from the extreme feminism, known as radical feminism. It states that pornography is gender violence that violates the civil rights of women. Pornography may well impact upon behaviour, although recent studies question the extent. But it is extraordinarily difficult objectively to measure that impact. Sexual responses are extremely complex, and elude artificial lab conditions.
In law, anything that tends to corrupt public morals by its indecency. Crimes against public decency and morality typically include not only prostitution, gambling, and drug use, but also pornography, obscenity, and various other consensual sex offenses-such as bestiality, deviate sexual relations, lewdness, indecency, seduction, fornication, adultery, and bigamy. Crimes against public decency and morality are sometimes termed victimless crimes by virtue of the fact that they generally involve willing participants.
The moral concepts that the term connotes vary from time to time and from place to place. Whether pornography has any significant harmful effects on consumers continues to be a controversial issue, not only for average citizens but also for behavioural scientists.
The issue that I am considering and putting forward here is how teenagers and women in society are affected by this evil. It has been observed that the effects of pornography are progressive and addictive. Internet has proven a useful tool for pedophiles and sexual predators as they distribute child pornography. Individuals access the higher the risk of their acting out what they see, including sexual assault, rape and child molestation. The habitual consumption of pornography results in a dissatisfaction of sexual needs and corresponding strong desire for more deviant and violent method for satisfaction.
The victims of pornography are all around us. A child lost innocence, a women lost security and privacy and a man lost his self-control. Majority of pornography represent women as a complete sexual object and does not have any form of love and romance. Its main purpose is to humiliate and degrade the female body for male pleasure.
Organized crime is heavily involved in pornography. It is a sad commentary that despite the Constitutional articles, legislative provisions, codes, self regulations, and various regulatory bodies, both Print and Electronic Media continue to portray obscene images of women. They focus on sex appeal or physical beauty of women. Then, are given clinched argument by the media that they dish out what the people want. All this is just hackneyed expressions without any sincere attempt to provide constructive suggestions and guidelines for the emergence of a healthy media industry.
19(1)[1]. All citizens shall have the right-
(a) To freedom of speech and expression; (2) Nothing -in sub-clause (a) of clause (1) shall affect the operation of any existing law, or prevent the State from making any law, in so far as such law imposes reasonable restrictions on the exercise of the right conferred by the said sub-clause in the interests of public order, decency or morality”
Pornography is another one of those issues that borderline between free speech and sensibility. No doubt this article guarantees complete freedom of speech and expression but it also makes an exception in favour of existing laws which impose restrictions on the exercise of the right in the interests of public decency or morality.
The section of the Penal Code in dispute was introduced by the Obscene Publications Act (7 of 1925) to give effect to Article 1 of the International Convention for the suppression of or traffic in obscene publications signed by India in 1923 at Geneva. It does not go beyond obscenity which falls directly within the words “public decency.
Section 292, Indian Penal, Code, manifestly embodies such a restriction because the law against obscenity, of course, correctly understood and applied, seeks no more than to promote public decency and morality. The Indian Penal Code does not define the word “obscene” and this delicate task of how to distinguish between that which is artistic and that which is obscene has to be performed by courts and in the last resort by us. If the rigid test of treating with sex as the minimum ingredient were accepted hardly any writer of fiction today would escape the fate Lawrence had in his days. Half the book- shops would close and the other half would deal in nothing but moral and religious books which Lord Campbell boasted was the effect of his Act.
For more effective laws there is need to change the existing law of pornography and a separate legislation should be enacted. Most countries attempt to restrict minors’ access to hardcore materials, limiting availability to sex shops, mail-order, and television channels that parents can restrict, among other means. There is usually an age minimum for entrance to pornographic stores, or the materials are displayed partly covered or not displayed at all. More generally, disseminating pornography to a minor is often illegal. Many of these efforts have been rendered practically irrelevant by widely available Internet pornography. A failed US law would have made these same restrictions apply to the internet.
If society allows pornography to flourish, young teenagers today think it is “OKAY” to hold a girl down and force her to have intercourse. When did the moral values of this society deteriorate to such a low level? When a young boy has easy access and constant exposure to such materials, the causal affects of such exposure of his mind helps him to formulate theories that support the above situation.
© Chawla Publications (P) Ltd.
These days we are having many discourses on human rights. On December 10th every year we celebrate and commemorate these rights very meticulously. The General Assembly of the United Nations Organisation passed a resolution 217-A (III) on 10th December, 1948 known as the Universal Declaration of Human Rights (UDHR). The heart of UDHR articles, as given in Articles (1) and (2), is that:
“human beings are born free and equal in dignity and rights, and that they are endowed with reason and conscience and should act towards one another in a spirit of brotherhood,” and “Everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.”
Human Rights are rights that all persons have simply because they are human beings; because they are persons. Human rights are those natural rights which are inherent in our nature precisely as ‘human’ and without which we cannot live as human beings. Hence to understand human rights one ought to understand what ‘human person’ and ‘human life’ are all about; the nature of human personality and the dignity of human life need to be adequately assessed in order to comprehend human rights adequately.
The meaning that we ordinarily give to the concept of human rights goes beyond the description given in the “Protection of Human Rights Act, 1993” in India by which the National Human Rights Commission (NHRC) was constituted. Explaining the phrase “human rights”, paragraph 2(d) says:
“Human rights mean the rights relating to life, liberty, equality and dignity of the individual guaranteed by the Constitution or embodied in the International Covenant and enforceable by courts in India.”
As clear from this definition, the Act is talking of the human in human rights in an individual sense, not in a collective, communitarian or relational category. The anthropological understanding of the human here is in an isolated individual category. But today we talk of a relational anthropology. An authentic and adequate understanding of the human is in a corporate, relational and communitarian character. Here we have to go beyond our definition of a person as a ‘rational being’ and re-define a human being as a “rational and relational being-with” (a ratio- relational being-with). I am not just a person but a person-with. My very entity is embedded in a socio-relational, corporate, and communitarian character of interdependency. In the otherness of the other I find my identity (Buber). Only an integral view of human rights that takes into consideration of both individuals and groups, including the rights of humanity as such, can provide a dynamic future to the human rights discourse. A realization of the complexity of the human rights debate can take us to a holistic and integral approach to human rights.
The concept of ‘right’ too is not free from ambiguities. Trying to clarify the concept in the judicial context, Wesley Newcomb Hohfeld, an eminent jurist, talks of four things, viz. claims, liberties, powers, and immunities. Thus one can talk of ‘claim rights’, ‘liberty rights’, ‘power rights’, and ‘immunity rights’. They are described and thus considered as legal advantages. These four legal advantages are juxtaposed with ‘opposites’ and ‘correlates’ (which he calls ‘legal disadvantages’). Thus he expanded and generated eight fundamental conceptions of ‘right’.
The rights that humans have could be put in the categories of positive rights and moral rights. A positive right belongs to the realm of what is, and moral right belongs to the category of what ought to be. In an authentic humanisation process the positive should continuously strive to the moral.
Human rights are moral rights. “Moral” indicates that they are based on a valid moral principle. To call a principle “moral”, in turn, is to indicate that certain requirements for action are obligatory. Hence human rights are rights, which imply obligatory requirements for action. Besides moral rights, there are legal rights, prudential and intellectual rights. The difference among these rights is based on the different justifying criteria for these rights. For example legal rights are based on statutes and other laws.
Earlier philosophers called these rights “Natural rights”, meaning that they are rights derived from the nature of the individual, and existing for one’s welfare. They differ from civil rights, which are derived from society or the state, and are intended for a social or a civil purpose. The right to vote, the right to hold a public office, are examples of social or civil rights. A natural right neither proceeds from nor is primarily designed for a civil end, and so it cannot be annulled, even by the State. For example right to life and the right to liberty are so sacred to an individual, so necessary to one’s existence and welfare, that even the State may not rightfully kill an innocent person, nor punish an innocent one to prison. There are people who argue that a State does not have the right for capital punishment even of guilty people. A natural right neither proceeds from nor is primarily designed for a civil end, and so it cannot be annulled, even by the state.
Though natural rights are all equally valid, they differ with respect to their basis, their urgency, or importance. We may distinguish three principal types of Natural Rights.
The first type is exemplified in an individual’s right to live. The object of this right, life, is intrinsically good, i.e., good for its own sake, an end in itself. It is an end to which even the civil society and/or the state is a means. Since life is good intrinsically, the right to life is also valid intrinsically.
Among the natural rights of the second category are the right to enjoy personal freedom, the right to marry, right to education, the right to own consumption-goods such as food and clothing. The objects of these rights are not ends in themselves, but means to human welfare. It is an indispensable means to reasonable life in the majority of persons. Right to education may belong to this category; social association might belong to this category. One could say that the right to the HIV/aids infected for care and protection belongs to the second category of the natural rights. Of course, as far as they have a right to live, as any person in a society, they too have the right of the first category. Hence there life too is to be protected and saved. Their life too is an end in itself.
There is a third class of natural rights. Private ownership of land belongs to this category. It is also a means to human welfare. It is not directly necessary for every individual, like food is necessary for living.
Public Interest Litigation (PIL) is very helpful for those who find it very difficult to have access to justice because of poverty, technicalities of law, rule of locus standi or for some other reason. There is constant change in the approach of judiciary in regard to the main concerns of the PIL jurisdiction and its causes and consequences. In the earlier years of PIL jurisdiction, the main concern was the problem of the poor. In the later period, the focus changed to developmental concerns of the upper and middle classes. This change in judicial attitude has been conditioned by social and political priorities. The emergence of PIL in the 1970’s, at a time when socialism and collectivism were dominant political ideologies, was a certain rejection and appreciation of limitation of laissez faire common law jurisprudence which strictly followed the rule of locus standi. The elevation of Justice Krishna lyer in 1974 to the Supreme Court reinforced the tendency towards people-oriented judicial action. For Justice Krishna lyer, law is meant for the people, not people for the law K.M. SHARMA : JUDICIAL UNIVERSE OF MR. JUSTICE KRISHNA, (1981) 4 SCC (JOUR.) 30. The activist approach of judiciary in enforcing human rights through PIL jurisdiction can be seen in two phases, which are influenced by the dominant political and social ideology of the respective period. First, the era of socialism, which started from lifting of emergency lasting till the process of liberalization began and second, economic liberalization era, which began in 1990 with P.V. Narsimha Rao Government coming to the power.
During this period the Indian courts, especially the Supreme Court, were primarily concerned with the problems of the poor and the downtrodden through the PIL jurisdiction. A large number of laws relating to legal aid, abolition of bonded labour system, oppression of Dalit and debt relief to the poor were passed during this period.
In three Hussainara Khatoon cases (1980) I SCC 81; (1980) 1 SCC 98 : (1980) 1 SCC 108, the court took up the problems of the poor under trial prisoners and gave elaborate directions so that the poor under trial prisoners may be released on bail with comparative ease. In Rudul Shah v. State of Bihar, AIR 1983 SC 1086 the Supreme Court directed the state to give specific compensation to the petitioner against petitioner’s illegal detention. In Sunil Batra v. Delhi Administration, (1980) 3 SCC 488 the court treated a letter, written by a prisoner complaining about brutal attack and assault by head warden on a fellow prisoner, as a writ petition on the ground of class standing. The court issued elaborate instructions for safeguarding the rights of prisoners and for the improvement of jail administration.
In People’s Union for Democratic Rights v. Union of India, (1982) 3 SCC 235 the Supreme Court gave attention to the problems of the weaker and unorganized sections of labour, who in India are one of the vulnerable sections of society. The Supreme Court entertained a petition from a public-oriented organization on the behalf of labourers belonging to socially and economically weaker sections of society, employed in the construction work of various projects connected with Asian Games in 1982.
In Bandhua Mukti Morcha v. Union of India, (1984) 3 SCC 161 a public-spirited organization alleged that in some stone quarries of Faridabad, labourers lived under inhuman conditions and many of them were bonded labour. The court ordered compliance of welfare legislations and released the bonded labour, after verifying the allegations through a commission appointed by it.
A large number of homeless people, especially in big cities, illegally squat on public lands and pavements. Because of the magnitude of the problem and near impossibility of these homeless people to acquire any alternative place of residence, the S.C. in Olga Tellis v. Bombay Municipal Corporation, (1985) 3 SCC 545 was called upon to decide against the eviction ordered by the Bombay Municipal Corporation, which according to the petitioners was violative of many provisions of the Constitution. The court upheld the constitutionality of the impugned Section but at the same time held that even to evict pavement and slum dwellers the requirement of the rules of natural justice must not be dispensed with.
The aforementioned cases analyse and effectively portray the significance of PIL in India, which continued to remain so in the latter period but different issues received central attention of the judiciary like environment and economic development. The reason for this was the change in the dominant social and political ideology to a free market economy, which led to the creation of a new class of consumers and investors, i.e., middle class. Subsequently, by addressing the issues of environmental and economic development, the courts were invariably addressing the issues of this middle class and also the upper class.
After economic liberalisation in 1991 the emphasis of PIL jurisdiction shifted from the problems of the poor to development, environmental and other concerns of the market and middle classes. In the new dispensation, the problems of the poor were attended only if the space left after satisfying developmental concerns, especially where the concerns of the poor were juxtaposed with development concerns and these development concerns are invariably expressed as concerns encompassing the interests of all.
Narmada Bachao Andolan v. Union of India, AIR 2000 SC 3751 is a case which clearly demonstrates the balancing of interests when there is a conflict between the interests of forest dwelling tribes and rural farmers, though in this case the apparent focus was on developmental and ecological issues. The petitioner insisted that the project was launched without proper planning, without proper understanding of environmental implications and thus violated rights under Article 21 of the Constitution. But the court was not impressed by any of the arguments and it appeared that development was the court’s priority area. The court described the purpose of this project in these words:
“The population of India which is now one billion is expected to reach a figure between 1.5 billion and 1.8 billion in the year 2050, which would necessitate the need of 2788 billion cubic meter of water annually to be above stress zone3. To feed increasing population more food grain is required and effort has to be made to provide safe drinking water. Darns play a vital role in providing irrigation for food security, domestic and industrial water supply, hydroelectric power and keeping flood water back. On full development, the Narmada has a potential of irrigating 6 million hectares of land and generating 3000 MW of power.”
In MC. Mehta v. Union of India, AIR 1997 SC 734 also known as the Taj Trapezium case, the Supreme Court took the laudable initiative to protect Taj Mahal from pollution. The court emphasized the importance of the Taj as one of the wonders of the world and ordered to switch over to natural gas as an alternative fuel for reducing pollution.
In M.C. Mehta v. Union of India, a Delhi stone crushing case, the Supreme Court ordered the closure of stone quarries in and around Delhi within three months to prevent air pollution and the Haryana government was asked to allot alternative sites in a new crushing zone.
Though these cases are very pertinent from the environmental point of view, these cases are silent regarding the problems of those who are rendered unemployed due to closure of quarries and industries. The cases suggested that the main concern of Indian judiciary in enforcing the human rights through PIL jurisdiction had been tilted toward the environmental and developmental concerns, which is predominantly the concern of the middle class and the other capitalists, and moreover this developmental and environmental concern is ostensibly shown as the concern for all including the poor and the downtrodden sections of society. Therefore, the judicial ideology is coincided or influenced by the predominant social and political ideology.
The Preamble of our Constitution encapsulates the basic objective of the Constitution to build a new socio-economic order where there will be social, economic and political justice for everyone and equality of status and opportunity for all. Till the advent of PIL, access to justice for the downtrodden and under-privileged was illusionary due to their poverty, ignorance and illiteracy. Therefore, the Supreme Court realized that it was necessary to depart from the traditional rule of locus standi to broaden access to justice. It did this by providing accessibility to the legal system where a legal wrong or a legal injury is caused to a person or to a class of persons, who by reason of their poverty or disability or socially or economically disadvantaged position, cannot approach the court for relief. In such cases any member of the public or social action group or interest group or a concerned citizen, acting bona fide, can move an application in a high court or the Supreme Court, seeking judicial redress for the legal wrong or injury caused to them. This judicial creativity led to the establishment of PIL jurisdiction in the aftermath of emergency. After 1990, during the era of economic liberalization, the main concern of the judiciary shifted towards developmental and environmental concerns with change in the dominant political and social ideology of free market economy and emergence of the new middle class. Though the judiciary continued to address the problems of the poor, its central concern shifted towards the developmental and environmental problems which were mainly the concerns of the middle and upper classes. Thus we see a shift in the judicial approach.
© Chawla Publications (P) Ltd.