Hindu law is an ancient legal system. India is a country with a rich diversity of people belonging to different religions. Given the varying religious beliefs, a unified code of law may not always cater to the sentiments of each religion. As a result, the concept of personal law has been introduced. Personal law aims to provide a legal framework that takes into account the religious customs and practices of different communities and ensures that they are not compromised. It is a way to ensure that the legal system is sensitive to the diverse cultural fabric of India and that every citizen is treated with fairness and respect.
Hindu law is an ancient legal and moral code system that rules the lives and behavior of Hindus. Hindus are obligated to follow rules and act accordingly. It guides Hindus in their personal, social, and religious conduct. Hindu law has been rooted in the ancient texts called the Vedas. In this blog post, we will delve into the intricacies of Hindu law, exploring its sources, principles, significance, and relevance in today’s modern world in different parts.
Sources of Hindu Law
Sruti Sruti means which was heard. The srutis are believed to contain the very own words of gods. It contains the divine words of gods to be found in 4 Vedas, 6 Vedangas, and the 18 Upanishads. They are mostly religious in character. That is why we find it very little practicable law in the modern time.
Smritis Smritis means what was remembered. Both srutis and smritis contain the very words of god which were heard and remembered and handed down by Rishis from generation to generation. Manu is the earliest smriti. Manu, Yajnavalkya, and Narada are the main smritis. Although smritis deals with rules of morality and religion.
Commentaries Commentaries are also called Nibandhas. Nibandhas is the interpretation put on the smritis by various commentators, such commentators have modified the original text according to the needs of the current world.
Puranas Puranas are codes that explain the law by giving examples of its application.
Judicial decisions Judicial decisions are a source of Hindu law because the judge is supposed to interpret and explain the existing law, and not create a new law. Judicial precedents become necessary and useful guides in the application of Hindu law.
Legislation A very large portion of Hindu law has been codified and is mainly to be found in the following four acts: 1) The Hindu Marriage Act, 1955 2) The Hindu Minority and Guardianship Act, 1954 3) The Hindu Succession Act, 1956 4) Hindu Adoption and Maintenance act.
Justice, equity, and good conscience In the absence of any specified law and conflicts between smritis and sruti, the principle of justice, equity, and good conscience would be applied, in other words, what would be most fair and equitable in the opinion of the judge would be done in a particular case.
Customs Customs are defined as rules that have been followed for a long time and have obtained the status of obligatory for Hindus. The customs must be reasonable, and it should not be against any law of the country.
Types of customs
Local customs In Hindu culture, customs play an important role in shaping the way of life for its people. Different types of customs are followed in the Hindu community, including local, general, and family customs. Local customs are specific to a particular geographical area and are binding on the people of that area. These customs are usually passed down from generation to generation and are deeply ingrained in the local culture and traditions.
General customs On the other hand, general customs are practices that are followed throughout the country. These customs are not specific to any particular region or community and are prevalent among all Hindus. Examples of general customs include the use of ‘Namaste’ as a way to greet people and ‘Tilak’ which is a ritual remark that is a sign of blessings or auspiciousness.
Family customs Family customs, as the name suggests, are typically followed only by a particular family. These customs are not obligatory for anyone outside the family to follow. These customs are unique to each family and may include specific rituals, traditions, or practices that are passed down from generation to generation. They are an important part of family identity and are often accompanied by stories and legends that explain their significance.
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According to Plato, JUSTICE is about harmony and balance. As the saying goes, “one person’s right, another person’s duty,” justice is about exercising one’s own rights while respecting those of others. It is a notion that describes how individuals should behave so as to be impartial, equal, and fair to every individual.
The history of civilization and society predates the concept of justice. Justice is a necessary component of any lawful society. Justice is one of a country’s most vital pillars. Justice is an integral part of a lawful society.
JUSTICE:
The fundamental belief that justice is equivalent to the concepts of equal rights and opportunities and receiving fair treatment is most commonly associated with the concept of justice. Justice is the attribute that guarantees that no one is harmed or violated and that everyone is credited with what is rightfully theirs. The Latin word “JUSTITIA,” which denotes equity or righteousness, is where the word “justice” originated. It also comes from the French word “JOSTISE,” which denotes justice, equity, integrity, and the administration of the law. The right application of the law, as opposed to arbitrariness, is justice. Society cannot achieve justice unless laws are correctly interpreted and put into practice.
As said, for justice to prevail in any society, the law must be applied and implemented correctly. The Constitution is the supreme law of our nation and it was drafted with justice as a top priority because its authors recognized the value of establishing justice in a country.
JUSTICE UNDER THE CONSTITUTION OF INDIA:
“We the people of India, having solemnly resolved to constitute India into a SOVEREIGN SOCIALIST SECULAR DEMOCRATIC REPUBLIC and to secure to all its citizens:
JUSTICE, social, economic and political;…”
These are the opening lines of the Preamble of The Constitution of India. The preamble its secures us justice in social, economic and political manner.
An act’s preamble outlines the primary goals that the legislation is meant to accomplish. It is as Sir Alladi Krishnaswami said “What we had thought or dreamt for so long”. It represents all of the goals and aspirations that the country has for itself.
In Kesavanand Bharti’s case, Supreme Court overruled the judgement in re Berubari’s case and held that the Preamble is the part of Indian Constitution. It has all the importance as attached to the Constitution itself.
The concept of justice expressed in the preamble of the Indian constitution is also reflected in Articles 14, 15, 16, and 17. Part III of the constitution, which grants every citizen fundamental rights, incorporates all of these articles.
The Indian constitution contains provisions pertaining to “Equal Justice and Free Legal Aid” in article 39A which grant every citizen the right to receive pro bono legal assistance from court officers. Free legal aid cannot be refused to anyone. The State has an obligation to guarantee that the legal system operates on the principles of justice, equal opportunity, and free legal assistance in order to guarantee that no citizen is denied the opportunity to obtain justice because of financial or other limitations.
The idea of distributive justice is one of the key conceptions of justice that the constitution upholds. Distributive justice refers to the equitable allocation of resources among individuals who are in need of it. The Indian Constitution’s Articles 38 and 39 provide descriptions of this.
As stated under the preamble of the Constitution, three kinds of justice are ensured by the Indian Constitution: social, economic and political.
SOCIAL JUSTICE:
Social equality is the foundation upon which the concept of social justice is built. Only in a society free from the practice of men abusing other men can social justice be upheld. Social justice is the absence of discrimination on the basis of caste, gender, or race and the provision of equal social opportunities for each person’s personal growth. These differences shouldn’t prevent anyone from having access to the social circumstances required for their development.
Social justice entails treating the unequal equally and maximizing the good for a greater number of people. According to the ruling in the Kesavananda Bharati case, the supreme court held that social justice if a component of Indian Constitution’s basic framework. The Indian Supreme Court ruled in the case of S.R. Bommai v. Union of India that social justice and judicial review are two fundamental aspects of the constitution.
ECONOMIC JUSTICE:
To achieve economic justice, one must ensure economic equality, opportunity, and removal of financial barriers. It is consistently carried out under the guidelines of social justice. The Indian constitution envisions socio-economic justice as included under the Directive principles of state policy. Economic justice is in some ways a component of social justice itself. Any person’s lack of opportunities shouldn’t be attributed to his or her financial situation.
The goal of economic justice is to end poverty by increasing the nation’s wealth and resources and allocating them equally to all those who contribute to its creation. All members of society should have equal access to the economy in order to achieve economic justice. Individuals shouldn’t be treated differently depending on their financial situation. Nobody should be denied a chance because of their financial situation.
POLITICAL JUSTICE:
Political justice refers to a system in which political arbitrary decision-making is absent. The government ought to conduct itself in a politically just manner. No one should be given preferential treatment or special treatment based on their political status; everyone should be treated equally. All laws should be applied equally, regardless of a person’s political affiliation.
All citizens are entitled to equal political rights under political justice, including the ability to vote, run for office, and hold public office.
The third chapter’s discussion of fundamental rights touches on some of the fundamental freedoms that each and every person has as a citizen of a free country. It attempts to make sure that the minimal requirements for living in a society that accords dignity and respect are not compromised.
CONCLUSION
In conclusion, the enforcement of the law serves as a catalyst for the advancement of national politics. To strengthen democracy, we need better justice administration. Without all forms of justice, no society can become constitutional; the authors of our constitution took this into consideration when drafting the preamble and sections III and IV of the Indian Constitution. Collaboration between the three branches of government is essential to creating a system built on a justifiable strategy.
The idea of the institution of marriage emanates from our age old traditions
and customs which are being followed in the society till date. Marital rape is the
most common and abhorrent form of narcissism in Indian society hidden behind
the sacrosanct curtains of marriage. Social practices and legal codes in India
mutually enforce the denial of women’s sexual agency and bodily integrity which
lie at the heart of women’s human rights. The law does not treat marital rape as a
crime. Even if it does, the issue of penalty remains lost in a cloud of legal
uncertainty. In India marital rape is not defined in the Indian Penal Code and thus
not criminalized and it’s largely not viewed as rape in India due to the sacred
nature of marriage in Indian culture. Marital rape or we can say non-consensual
sex by one spouse with another spouse leads to a gravest form of human right
violation with a domestic violence or sexual abuse on the victim.
India has advanced in almost every field, yet sexual violence which occurs
within the four walls of a matrimonial home is said to be a private family matter
and is excluded from scrutiny by legal institutions like the courts.
The argument that has surfaced is due to this inhumane treatment that
women go through in the society. Our legal system and the criminal laws cannot
turn a deaf ear towards the injustice that is being perpetrated in Indian society
against women. The lawmakers should delve upon the issue and realize that it is
important to acknowledge this as an offence for the sake of sanctity of the
Constitution and the dignity of married women which must be protected.
Today, there are many countries that have recognized marital rape and
enacted laws, repealed marital rape exceptions or have laws that do not distinguish
between marital rape and an ordinary rape. The criminalization of marital rape in
the countries both in Asia and around the world indicates that marital rape is now
recognized as a violation of human rights. Despite underreporting, marital rape
unquestionably has an enormous impact on the lives of women who experience it.
The foundation of this exemption in marital rape could be traced back to
statements made by SirMatthew Hale, Chief Justice in 17th Century England in his
book ‘History of the Pleas of the Crown’. He very emphatically asserted that, at the
time of solemnization of marriage, the wife automatically hands over her legal
person to the husband and consents to all sexual acts which cannot be disavowed at
any later date for no reason whatsoever. He introduced within the marriage, a
notion of ‘implied consent’ that started at the time of the marriage and
continued for the entire course of the marriage and such consent was deemed
irrevocable by Lord Hale. This established that once married, a woman does not
have the right to refuse sex with her husband. Due to the construction of sex as a
woman’s duty within a marriage, there is always a presumption of her consent. It
is due to this reason that in majority of the countries in the world; the husbands
enjoy ‘criminal law immunity’ for raping their wives. So, the bitter truth
is wife rape has existed as long as the institution of marriage itself. The
another contention for this assumption lies in the fiction that the wife is considered
to have given her irrevocable consent to sexual intercourse to the husband at the
time of the marriage and hence the husband cannot be held guilty of rape.
Physical and Psychological Effects of Marital Rape
There is a historical myth that rape by one’s partner is a relatively
insignificant event which causes little trauma but the researches speak otherwise.
According to the studies it’s observed that marital rape often has severe and longlasting consequences for women. The reverberations include physical effects as
well as psychological effects. Besides these, there are specific gynaecological
consequences of marital rape which include miscarriages, stillbirths, bladder
infections, infertility, the potential contraction of sexually transmitted diseases
including HIV.
Though we have advanced in every possible field, marital rape is not
considered as an offence in India. Despite amendments, law commissions and new
legislations, one of the most humiliating and debilitating acts is not an offence in
India. The final version of Section 375 of the Indian Penal Code, which emerged
after deliberations in the Select Committee, is a crystallized form of Clause 359
of the Macaulay’s Draft Penal Code.
In 2005, the Protection of Women from Domestic Violence Act, 2005 was
passed which did not consider marital rape as a crime, although it considered it as a
form of domestic violence. Thus, under this Act, if a woman has undergone marital
rape, she can go to the court and obtain judicial separation from her husband. This
only seems like a patchy legislation and much more needs to be done by the
Parliament in regard to marital rape.
Marital rape reflects the waywardness of an individual. Being subject to
sexual violence by her own husbandwraps the woman in a sense of insecurity and
fear. Her human rights are sacrificed at the altar of marriage. The Indian Penal
Code has not dealt with this form of rape much. Thus, it is clearly evident that the
law which is inadequate and insufficient to protect the interests of those afflicted
with the ill of marital rape. The fundamental argument which is advanced in
favour of these so-called ‘laws’ is that consent to marry in itself encompasses a
consent to engage into sexual activity. But, does an implied consent to engage into
sexual activity also mean consent to being inflicted with sexual violence.
Even international law now says that rape may be accepted as the sexual
penetration, not just penal penetration, but also threatening, forceful, coercive use
of force against the victim, or the penetration by any object, however slight. Article
2 of the ‘Declaration of the Elimination of Violence against Women’ includes
marital rape explicitly in the definition of violence against women. These
provisions are not meant to beguile but to give the victim and not the criminal, the
benefit of doubt.
Women so far have had recourse only to Section 498-A of the Indian Penal
Code, dealing with cruelty,to protect themselves against ‘perverse sexual conduct
by the husband’. There is no standard of measure or interpretation for the courts,
of ‘perversion’ or ‘unnatural’.
The Law Commission of India in its 42nd report put forward the necessity of
excluding marital rape from the ambit of Section 375. This is because they believe
that the prosecutions for this offence are very rare. They further added that it would
be desirable to take this offence altogether out of the ambit of Section 375 and not
call it rape even in technical sense.
There are number of women’s organizations and also the National
Commission for Women, they have been demanding the deletion of the exception
clause in Section 375 of the Indian Penal Code. However, the Task Force on
Women and Children set up by the Woman and Child Department of the
Government of India took the view that there should be wider debate on the issue
in question. It took the position that the definition of rape ought to be broadened to
include all forms of sexual abuse. But later, like the Law Commission, the Task
Force also abstained from recommending the inclusion of marital rape in the new
definition.
172nd LAW COMMISSION REPORT
The 172nd Law Commission report which was passed in March 2000
recommended for substantial change in the law with regard to rape wherein it
stated that explanation (2) of section 375 of IPC should be deleted. Forced sexual
intercourse by a husband with his wife should be treated equally as an offence just
as any physical violence by a husband against the wife. Regardless of the 172nd
Report of the Law Commission of India submitted in the year 1998, urging the
Government of India that the Parliament should replace the present definition of
rape under Section 376 Indian Penal Code with a broader definition of sexual
assault, which is both age and gender neutral, nothing substantial happened.
THE CONSTITUTIONAL PROVISIONS VIS-A-VIA EXEMPTIONS TO MARITAL RAPE
We have a very progressive Constitution on paper. Article 14 guarantees
equality before law to all the country’s citizens. Article 15 prohibits discrimination
on various grounds, including religion, caste, race and gender. Article 16 provides
for equal work to all in matters of public employment. But our laws have never
seriously improved the unequal terms of male entitlement over women’s labour
and their bodies. The exemption withdraws the protection of Section 375 of the
Indian Penal Code from a married woman on the basis of her marital status. It
takes away a woman’s right of choice and indeed effectively deprives her of bodily
autonomy and her personhood.
Article 21 of the Indian Constitution enshrines in it the right to life and
personal liberty. After the case of Maneka Gandhi v. Union of India (AIR 1978,
SC 597), it has become the source of all forms of right aimed at protection of
human life and liberty. However, in the light of this expanding jurisprudence of
Article 21, the doctrine of marital exemption to rape violates a host of rights that
have emerged out of the expression ‘right to life and personal liberty’. It is the
most blatant violation of Article 21.
There is another corollary to Article 21 which is not mentioned distinctly in
the Constitution but it is an underlying factor called ‘Right to Privacy’.
Nonetheless, the Supreme Court, in a series of cases, has recognized that a right
to privacy is constitutionally protected under Article 21.
The Supreme Court in the case of ‘State of Maharashtra v. Madhkar
Narayan’ (AIR 1991, SC 207), has held that every woman was entitled to sexual
privacy and it was not open to any and every person to violate her privacy as an
when he wished. In the case of ‘ Vishakha v. State of Rajasthan’ (AIR 1997,
SC 3011), the Supreme Court extended this right of privacy to workplaces. Further,
along the same line there exists a right to privacy to enter into a sexual relationship
even within a marriage. By decriminalizing rape within a marriage, the marital
exemption doctrine violates this right to privacy of a married woman.
THE JUDICIAL APPROACH
A woman’s right to privacy is violated in case of non-consensual sexual
intercourse with the husband. Rights and duties in a marriage, like its creation and
dissolution are not the terms of a private contract between two individuals. The
right to privacy is not lost by marital association. What is sad to know is that all
stranger rapes have been criminalized and all females, other than wives, have been
given the right of privacy over their bodies thereby envisaging the right to withhold
consent and refuse sexual intercourse.
Under Indian law, exception to Section 375, Indian Penal Code lays
down that if the woman is married and not less than fifteen years of age,
sexual intercourse by the husband is not rape. Prior to the amendment in
Indian Penal Code in 2013, when the wife was between 12–15 years, the
quantum of punishment was extended to two years or fine. The amendments
which were brought in 2013 have eliminated this clause but at the same time
have not recognized the concept of marital rape and have chosen to continue
with the existing legal approach. Even the Justice VermaCommittee Report
has recommended that marital rape exemption in the Indian Penal Code should
be withdrawn.
The peculiarity of Indian law is adoption of the principle of predominance
of husband’s right over that of the wife even when she is well below the legal
age of marriage. The law covers only the separated couples; not living together
under Section 376-B of Indian Penal Code.
The court held in Haree Mohan Mythee case {(1891) ILR18Cal49} that
husband does not have the absolute right to enjoy the person of his wife
without regard to the question of safety of her. As per this decision, the only
circumstances where the law recognizes the encroachment upon husband’s
absolute right tosexual intercourse is when it becomes extremely dangerous to
woman due to some physical illness etc. and grave consequences like death
may follow. Thus, from this it is evident that no effort has been made to give
even a semblance of protection to the right of a married woman to her
physical or sexual autonomy.
INDEPENDENT THOUGHT V. UNION OFINDIA (2017)10 SCC 800
In a writ petition filed in public interest by a society, Independent
Thought, the Supreme Court has considered the scope and viability of
Exception 2 to section 375 of Indian Penal Code. The issue before the court
was to consider the recognition of marital rape when the husband has sexual
intercourse with the wife when she happens to be between15-18 years of age.
This is a landmark decision of Supreme Court whereby the court has held that
Exception 2 to Section 375 of the Indian Penal Code answers this in
negative, but in our opinion sexual intercourse with a girl below 18 years of
age is rape regardless of whether she is married or not. The exception carved
out in the IPC creates an unnecessary and artificial distinction between a
married girl child and an unmarried girl child and has no rational nexus with
any unclear objective sought to be achieved. The artificial distinction is
arbitrary and discriminatory and definitely not in the best interest of the girl
child. The court further held that the artificial distinction is contrary to the
philosophy and ethos of Articles 15(3) and 21of the Constitution as well as the
International conventions. It certainly violates the bodily integrity of the girl
child and her reproductive choices. Pointing out the obligations of the Indian
government under Convention on the Rights of the Child, 1990 to undertake
all appropriate measures to prevent the sexual exploitation and sexual abuse
of any person the court observed that the Indian government has persuaded
the legislature tolegitimize an activity which is otherwise a heinous offence
when i t occurs without marriage. The duality of the marital exemption
clause is that it comes in sharp conflict with the provisions of POCSO
(Protection of Children from Sexual Offences) and JJA (Juvenile Justice
Authority). The POCSO defines ‘penetrative sexual assault’ which becomes
aggravated when the offender is related to the victim. Since the Act has got
overriding effect, a very complexand peculiar legal position emerges whereby
the husband is exempted from any offence under Indian Penal Code and he
becomes liable to be punished for aggravated sexual assault under POCSO.
The Committee has recommended the deletion of the marital rape exemption
under the Indian Penal Code while making the reference that a rapist is a rapist
irrespective of his relationship with the victim. The state legislature has
inserted a Sub-Section (1-A) in Section 3 of the PCMA declaring that every
marriage henceforth will be void ab initio, if violative of the age requirements
specified. Therefore, the husband of a girl child will be held liable for the
offences under POCSO if the husband and the girl child are living together in
the same household.
The court has considered various options to lessen the turmoil of the girl
child and observed:
We are left with absolutely no other option but to harmonise the
system of laws relating to children and require exception 2 to section 375
IPC to now be meaningfully be read as: “Sexual intercourse or sexual acts by
a man with his own wife, the wife not being under eighteen years of age, is
not rape.” It is only throughthis reading that the intent of social justice to the
married girl child and the constitutional vision of the framers of the
Constitution can be preserved and protected and perhaps given impetus. Thus,
the Apex court decided to bring Exception 2 of Section 375 within the four
corners of law and in consistency with the Constitution of India.
The Independent thought judgment is indeed an evocative illustration of
judicial activism and craftsmanship to give a reasonable interpretation to a
provision which incorporates a dead concept inthe legislation. But at the same
time, it is a little disconcerting to note that how the Supreme Court on more
occasions than one, has very categorically stated that they would not like to
make a comment on marital rape generally where the age of the wife is 18 or
more than18 years.
In Justice K.S. Puttuswamy (Retd.) v. Union of India, {S(2017),10 SCC 1,
AIR 2017 SC 4161)}, the Supreme Court recognized the right to privacy as a
fundamental right of all citizens. The right to privacy includes ‘decisional privacy’
reflected by an ability to make intimate decisions primarily consisting of one’s
sexual or procreative nature and decisions in respect of intimate relations.
Therefore, forced sexual cohabitation is a violation of the fundamental right under
Article 21. There is a need for the law to evolve in a manner where human
problems are dealt with a humane approach.
The panel set up to review the Verma Committee suggestions put forward
that criminalizing marital rape would put the entire family under stress and can
potentially destroy the institution of marriage. However, it is also argued that the
act of rape itself has the potential to destroy the institution of marriage.
Furthermore, concerns regarding misuse often come up while discussing
criminalization. To this, human rights advocates respond that the difficulty in
proving the commission of the offence or its possible misuse should not deny the
victims from seeking legal recourse. Therefore, penalizing marital rape must
necessarily come with amendments to the Hindu Marriage Act.
CONCLUSION:
After all the analysis that I have come across I find that marital rape though
under-reported exists in our society. The courts aren’t accepting the concept of
marital rape but that doesn’t mean that wives are not being raped by their
counterparts. Now, it is about time, we honour, our women and their right to bodily
autonomy. In the year 2013, the UN Committee on Elimination of Discrimination
Against Women (CEDAW) recommended that the Indian government should
criminalize marital rape. But the difficulty will arise in case of misuse of such law,
how it will be determined as to when the consent was withdrawn. In other rape
cases veracity of statement of prosecutrix, when she is the sole witness (because in
marital rape cases there cannot be any other witness except the prosecutrix herself),
is tested with corroborative medical or circumstantial evidences such as last seen
of the accused at place of incident or with the victim, injuries on private parts,
position of hymen, presence of spermatozoa of the accused in the semen of victim
or from her body or cloths, bodily injuries witnessing use of force, but in the case
of marital rape except injuries all circumstances will be presumed against the
accused and will not be needed to prove. Therefore, in order to cut down
possibility of abuse of the any such penal provision, there must be some safeguards
that marital rape cannot be alleged without proof of injuries showing use of force
with sufficient medical evidence.
There is one argument that is doing rounds with respect to the consequences of law being framed against marital rape is that the women may tend to misuse such a law if it comes into force and they would file false cases of rape against their husbands. However, it would be good to keep in mind that any law can be misused but that doesn’t mean it should not exist. So, it is upon the judiciary to carefully examine each case and make proper suggestions so that loopholes could be kept away. Also, when our governments and lawmakers could take steps to end certain anti-women customs like Sati and female
infanticide, why can’t they address this one? Now, there is an urgent need for the
judiciary to recognise marital rape as an offence under the Indian Penal Code especially as there has been a surge in domestic and sexual violence cases against women due to the pandemic-induced state-of-affairs. Besides, if we truly wish to rethink the republic as one in which women really matter, we need to move beyond contemplating about family relationships. The State needs to acknowledge the women’s actual experienced reality in contexts of unequal pay, allocation of inferior work and denial of rights over their mind and bodies. We also need to deliberate upon the fact that did the women, ever consent to be ruled by a toxic brand of masculinity that would treat her as merely a vote bank or a second-class citizens? Though occasionally women are handed over the morsels of progressive or revised legislation but they hardly matter as they are still denied their essential status as independent and equal citizens. So lastly, I would assert my view by quoting J.S.Mill ‘over himself, over his own body and mind, the individual is a sovereign’. Also, we have to give this issue a thought as every reform was once an opinion.
The Black’s law dictionary defines hate crime as ‘a crime motivated by the victim’s race, color, ethnicity, religion or national origin’ (BLACK’S LAW DICTIONARY
428; 9th ed. 2009). The definitions or understanding about the hate crime also includes the term sexual orientation as spoken by the United States government under Violent Crime Control and Law Enforcement Act of 1994. Furthermore, hate
crimes are a crime in which the defendant intentionally selects a victim, or in the
case of a property crime, the property which happens to be the object of the crime, because of the actual or perceived race, color, religion, national origin, ethnicity,
gender, disability, or sexual orientation of any person. (Violent Crime Control and Law Enforcement Act of 1994, Pub. L. No. 103-322, § 280003, 108 Stat. 1796,
2096).
After analysing all this we find that there are basically two essential conditions to constitute a hate crime; firstly, the accused must have committed a crime which may or may not be grievous and secondly, that such act was ventured as a result of the hatred towards that person’s or that group’s perceived identity. Thus, we see that there is a basic difference between a normal crime and a hate crime; the normal crime may only require ‘actus reus’ and ‘mens rea’ but for a hate crime to be proved apart from these two given conditions, we need to establish ‘hatred’ as a primary and sole motive which is the sine qua non behind the commission of such offence. Hate crimes are radically different from normal crimes because they are motivated by discrimination.
EVOLUTION AND CHRONOLOGY OF HATE CRIMES IN INDIA
There have been number of hate crime incidents in India since independence few of them are so ill-famed and gruesome that they have found a separate locus in the crime history of India. Some of them are following:-
(A) The Anti-Sikh Riots of 1984: The anti-Sikh massacre of 1984 refers to a series
of organized mass-killings against members of the Sikh community across India.
The then Prime Minister Indira Gandhi ordered the charge of Indian Army into the
holy shrine of Sikh, the Golden Temple situated in Amritsar to wipe out militants
hidden inside followed by an operation known as ‘Operation Blue Star’ by the Indian
military which was criticized by Sikhs worldwide.
It was rather interpreted as an assault on the Sikh Religion as a whole. This operation resulted in the assassination of Indira Gandhi by her own Sikh bodyguards on October 31st 1984, as an act of revenge. It further led to a public outcry thus resulting in anti Sikh riots killing more than 3,000 Sikhs in the capital of the country itself and 8,000 across India. It is known as the darkest era of the Sikh history.
(B) Babri Masjid Riots and The Bombay Riots, 1992: The demolition of Babri
Masjid on 6th December, 1992 led to the deadly riots and changed India. Now, ever
since it happened it continues to be a topic of debates and the news headlines, until
recently when the Supreme Court unanimously passed the Babri Masjid judgment
on the 9th of November, 2019. December 6, 1992 marked the beginning
unrestrained tyranny that has polarized and divided the Indian society very deeply.
Though demolition of the holy shrine sparked riots across India, it was Bombay
where the worst brutal bloodbath took place. Around 900 Bombay residents were
left dead in the two stages of riots of which 575 were Muslims, 275 were Hindus
and the remaining 50 were from other religions.
(C) The Gujarat Riots, 2002: The 2002 Gujarat riots or the Godhra Riots stands
among one of the most ruthless and carnage riots the land of Mahatma had ever
encountered. The burning of a train in Godhra, a municipality in Panchmahal district
of Gujarat on the 27th of February 2002, caused the deaths of around 58 Hindu
karsevaks returning from Ayodhya leading to a unspectacular three day period of
inter communal violence in the state resulting to the death of 1,044 people according
to official records. Around 2,500 were injured and around 223 people went missing
in the clash between the two religions. Among the people who died around 790 were
Muslims and 254 were Hindus.
This destruction has been considered as a communal
riot but till date there have been debates and discussions where the renowned
scholars have opined and alleged that the said riots was more of a planned attack and
the attack on the train was further commented to be a ‘staged trigger’ for what
followed suit. Due to the nature of this communal riot it was considered to be so
heinous that it has been categorically mentioned by the observers as the legal
definition of genocide which was later also referred as the state terrorism or ethnic
cleansing. Thereafter, many instances happened that followed suit to the Godhra
riots; some of them were the Naroda Patiya Massacre, the Gulbarg society massacre.
Since independence India had seen many communal riots but the Godhra riots of
2002 stands out among all for its specific targeting of women and children who were
subjected to the most callous and remorseless forms of violence. The Tribunal
reported that the women were raped, objects were inserted into their bodies and those
who survived such torture were later burnt alive.
(D) The Mass Exodus of Kashmiri Hindus: Kashmir, the paradise of India has
been one of the prominent places of riots. But of all, the most unforgettable is the
mass exodus of Kashmiri Hindus back in the cold winter nights of January, 1990.
The Kashmiri Hindus or Kashmiri Pandits as they are known were threatened by the
Muslims to either convert to Islam, or to leave the land or to die. Colonel Tej Kumar
Tikoo in his book very aptly described the situation and talked about the three
choices given to the Kashmiri Pandits – Ralive, Tsaliv ya Galive which stands for
convert to Islam, leave Kashmir or to be killed. It was apparent that the Kashmiri
Muslims had decided to throw the pandits out from the valley. Many well known
Kashmiri pandits gruesomely murdered by the Kashmiri Muslims in the nights of
January 1990. India has seen several changes since the fateful night in 1990
nationwide but till today thousands of Kashmiri Pandits who were once chased out
of their own homes have still not been able to find their way back to the place they
called home despite the change in governments and number of developments that
took place.
The rate of hate crimes have also risen to quite an extent over the past few years.
Amnesty International India has documented around 721 such incidents between the
years 2015 to 2018. In the year 2018 alone they had tracked down around 218 hate
crimes out of which 142 were against schedule caste and tribes, 50 were against
Muslims and eight were against Christians, and transgenders. While digging into the
roots, it was found out that the hate crimes were majorly honor killings, a concept
sadly prevailing since decades. Another branch of hate crime which has become very
frequent in the last few years is the cow related violence. It has been seen that cow
related violence in India has seen an upsurge in past few years. Hate Crime Watch,
a database of religious-bias-motivated hate crime in India points out that hate crimes
based on religious identity have increased from single digits to massive three digits
after the 2014 national elections. The year 2017 saw a rise in communal violence by
28% from the year 2014. Uttar Pradesh, a state in central India saw a rise of 47%
from 133 in 2014 to 195 in 2017, the most by any state. There have been instances
where the exact figures have never been counted or declared. One such is when the
National Crime Records Bureau published its annual report after a year’s delay in
the year 2019 and left out hate crime and lynching because they found the available
data regarding the same to be vague and unreliable. The said report also left out data
on crimes committed by religious leaders and khap panchayats. The NCRB report
also did lie silent on data regarding data on honor killings, rapes committed during
communal violence which clearly falls under the umbrella of hate crime. The year
2018 started the count with the ghastly tale of an 8 year old Asifa Bano’s body which
was found, beaten severely to death on the 17th of January in the pastureland of
Kathua, Jammu and Kashmir. This case created quite a cry in the nation with human
rights organization banging the high shut doors of the government asking for justice.
Later, many such incidents kept happening like the communal riots of state of West
Bengal followed by a technology driven incident like an innocent forwarded
message on Whats App which was circulated and claimed about a ten year old girl
being raped. It resulted into a communal clash in Rudraprayag in the state of
Uttarakhand which is considered to be the most peaceful state. Another instance was
from Assam’s Tinsukia district where a Facebook post became the reason of not one
but two communal clashes which further resulted in a protest thus blocking the
national highway. In addition to this, there was a phenomenal increase of 33% in
number of cases registered by National Human Rights Commission. In the year
2016-17 NHRC registered 505 cases whereas in the year 2018-19 this figure rose to
672. The NHRC registered 2,008 cases between 2016 and 2019 where minorities
and Dalits were harassed. The data in itself is quite alarming and thought-provoking.
EFFECT OF NEW MEDIA TECHNOLOGIES
A new kind of hate crime has come to the light lately which is about ‘auctioning’ of
several prominent and vocal Muslim women. This demeaning act is being done
through the apps called ‘Bulli Bai’ and ‘Sulli Deals’. This is seriously condemnable
and this indicates that the digital natives are not irrepressible against problems such
as disinformation, hate speech and the potential for radicalization that have plagued
our informational spaces. But now we need to delve into a broader context of
decreasing levels of social cohesion in Indian society which led to the situation
wherein such apps were even created. We need to think in a way that can point us
towards the right set of long-term interventions.
Thus to understand the fundamentals of these problems that have begun to surface,
we need to start by looking at the effect of new media technologies which have been
developed over the last 20 years on our collective behaviour and identities. The new
technologies have totally changed the scale and structure of human networks which
has led to abundance and virality of information. Social scientists are of the opinion
that these rapid transitions have altered the way individuals and groups influence
each other within our social systems. The swiftness of technological evolution
coupled with the speed of diffusion of these influences has also meant that we neither
fully understand the changes nor can we predict their outcomes. Our identities
ultimately bear on our analytical processes and arguments against our defining
values can activate the same tactile paths as the threat of physical violence. On the
one hand, the rise of social media has been linked to the strengthening of personal
social identities at the cost of increasing inter-group divisions while on the other
hand, the factual observation shows that people on social media gravitate towards
people with whom they have certain agreement despite frequent interaction with
ideas and people with whom they disagree. Still we ought to have a better
understanding of the broader psychodynamic effects, specifically in the Indian
context. The past ordeal suggests that when these beliefs are prejudices and
resentment against a specific group of people, the feedback loops of social
confirmation and validation can result in violence. Moreover, it can destabilize the
delicate social-political relations built over decades. The harms arising out of
increasing levels of polarization and radicalization are primarily analysed through
the lens of disinformation and hate speech which gives primacy to motives. This
leaves room for some actors to steer clear of responsibility since motives can be
deemed subjective. And for others to be unaware of the downstream consequences
of their actions often, even those taken with good intentions can have unpredictable
and adverse outcomes. The information ecosystem metaphor, proposed by Whitney
Phillips and Ryan M. Milner, compares the current information dysfunction with
environmental pollution. It encourages us to prioritize outcomes over motives. For
this, we should be more concerned with how it spreads and not whether someone
intended to pollute or not. Besides, it also makes us think that the effects of such
pollution integrate over time and attempts to ignore, or worse, exploit this pollution
only aggravates the problem, not just for those victimized by them, but for everyone
around. Hence, our focus tends to be on those who command the largest audiences
or have the loudest voices or on those who say the most dreadful things. The
polluters no matter big or small feed off each other’s actions and content across
social media, traditional media as well as physical spaces. There is no clear
distinction between ‘online’ and ‘offline’ effects neither they can be methodically
categorized nor easily distinguished. The ‘online’ harassment is harassment. The
actors could be varied as bored students, local political aspirants, content creators or
the influencers, national-level politicians or someone trying to gain clout, etc. seize
the entire information ecosystem. Their underlying motivations can range from
hackneyed to the disturbing to the discursive and so on. The interactions of these
heterogeneous sets of actors and motivations result in a complex and unpredictable
system, composed of multiple intersecting self-reinforcing and self-diminishing
cycles, where untested interventions can have unanticipated and unintended
consequences.
Many people have called for action by platforms to address hate speech. The content
moderation should be considered as a late-stage intervention rather such individuals
need to be stopped early in the path to radicalization and extremist behaviour to
prevent the development of apps such as ‘Bulli Bai’. The counter speech tactics to
counter hate speech by presenting an alternative narrative can play a significant role.
In fact, the counter speech could take the form of messages aimed at building affinity
with edify those targeted; enforcing social norms around respect or openness; or
condense a dialogue. Remarkably, this excludes fact-checking. Since behaviours in
online and physical spaces are linked an in-person community action and outreach
can be helpful. Social norms can be imparted through families, friends and
educational institutions, influencers and those in positions of leadership can have a
significant impact in shaping these norms.
EXISISTING LEGISLATIONS UNDER WHICH HATE CRIMES ARE PUNISHED IN INDIA
In India, we do not have any specific legislations or laws that regulate hate based
crime except the SC/ST Atrocities Act. Though the Indian Penal provisions contain
several separate sections that are similar to hate crime legislation like Section 153-
A of Indian Penal Code. This section of Indian Penal Code deals with promoting
enmity between different groups on grounds of religion, race, place of birth,
residence, language etc. and doing acts that are prejudicial to maintenance of
harmony. To constitute an offence under this section it is essential that two or more
groups must be involved and therefore merely inciting the feeling of one community
or group without any reference to any other community or group cannot attract this
section. (Pg no 1459 of Penal law of India 11th edition 18/04/19). This section is
mostly used with respect to religion based hate crimes in India. Under this section
the punishment provided is imprisonment up to three years and it could extend to
five years if the alleged act is conducted in a place of religious worship. Then we
have Section 298 of the Indian Penal Code, which deals with uttering words with
deliberate intent to wound a person’s religious feelings, where the punishment is
limited to one year. In addition to this we have Section 295-A of the Indian Penal
Code which specifically deals with acts that are prejudicial in maintaining religious
harmony. This section penalizes any deliberate and malicious acts intended to
outrage the religious feelings of any class by insulting its religion or religious beliefs
and provides punishment of imprisonment up to a term of three years or fine or both.
Likewise in the cases of mob lynching the alleged people may be charged for murder
as per Section 302 of Indian Penal Code read with common intention as per Section
34 or conspiracy as under Section 120B and in case the victim survives the attack
then the mob maybe charged for rioting as per Section 146 or for unlawful assembly
as per Section 141 or for attempt to murder as per Section 307. Similarly, Section
223 (a) of the Criminal Procedure Code allows to try two or more accused for
conducting a crime as a ‘same transaction’. But when we closely analyse, we find,
in all these instances the gravity of hate crime as an offence compared to other
offences is being overlooked and subverted. Due to this there is no complete justice
being served to the victim and his identified community or group. Nowhere, in
Indian Penal Code is there a section that penalizes any violent acts carried against
any person or any group based on their sexual orientation. With the recent judgment
which partially strikes down Section 377, there must be a comprehensive legislation
to look after the rights of the LGBT community.
ARGUMENT FOR ENHANCE PUNISHMENT AND FEDERAL MONITORING AGENCY
The first stage to solve a problem is to recognise its existence. The Supreme Court
has made certain observations about hate crime, hate speech and mob lynching. It is
technically the first step towards penalizing the hate crime. The measures suggested
by the Court categorically outlines the vision for a comprehensive penal policy in
this regard. It recognizes the core issues that are involved and at the same time it
provides some course correction. Firstly, the Court calls for recognising the
existence of hate crimes, mob-violence, and mob-lynching. Secondly, it talks about
speedy trial, protection to witnesses, compensation to the victims of hate crimes and
stern punishment for the offenders. Thirdly, court also felt the need for alternative,
effective and coordinated policing, right from district level to that of ministry of
Home affairs, Government of India for greater crime control.
CONCLUSION:
In Tehseen S. Poonawalla v. Union of India & ors, the Supreme Court of India
laid down certain guidelines for preventing the growing incidents of lynching. Every
state government was ordered to designate a senior police officer to prevent and take
prompt action against the mob violence and set up fast track court in such cases. In
addition to this, it should also be noted that there exists a collective responsibility of
every organ of the government to deal with this crime in an appropriate
manner. Thus, as per the directions of the Supreme Court, several states came up
with draft legislation to deal with mob lynching. The draft legislation devised by UP
Law Commission seems to have dealt with the problem methodically. The UP-draft
legislation in its proposal talks about the enhanced punishment to lynchers along
with punishment of three years on erring police officials. (Bajpai, 2019). Another
state that came up with the legislation with respect to lynching was Manipur in 2018.
The proposed legislation sought for protection to the victim of mob violence and
witness protection including schemes for rehabilitation of victims. The Rajasthan
and West Bengal government came up with bill against mob lynching in the year
2019. However, all these provisions are just a cursory attempt to deal with hate
crime. The Parliament of India is also contemplating to have a comprehensive law
on this issue. In the meanwhile, the lynching instances continue to rise. M. K.
Gandhi, the father of the nation, has once said that the object to violence because
when it appears to do good, the good is only temporary; the evil it does is permanent.
Thus, it is imperative to have a stringent, well-crafted, futuristic penal policy in order
to save the nation from a permanent scar. It is essential to place a policy of zerotolerance towards hate crime and mob lynching before the law enforcement agency.
In fact, as directed by Supreme Court, the criminal justice system needs to evolve
the policy of enhanced punishment for hate crimes which will send a twin message
simultaneously to all future offender that a crime committed out of prejudice or hate
will be dealt sternly and at the same time message will also be send to the victim or
the victim’s community that state will afford protection to all and no one should ever
feel downhearted.
The hate crime which is threatening the core of pluralistic ethos, diminishing the rule
of law, and eroding constitutional values need to be tackled differently. This sort of
crime which generates hatred and disharmony needs to be dealt with iron hand. In
this regard, having a Federal Hate Crime Monitoring Agency could serve the
purpose. The idea of having this body for a greater coordination is very much
enshrined in the directives of Supreme Court itself. Apart from having inter-state
coordination, this agency can preserve the data and sensitive information related to
the hate crimes. This can work in the line of principle of cooperative federalism and
will essentially sub-serve the constitutional objectives. Having centralised
bureaucracy for civil administration as well as policing, functioning of such a
mechanism will not be much problematic. Besides, the publication of hateful
comments and threats against any community on print and social media should be
closely monitored. Lastly, the common citizens should also make efforts in creating
awareness against the hate crime and how essential it is to eradicate this evil from
the society.
There is a historical school of jurisprudence that attaches a lot of importance to history. The school advocates the ideology that Law is not made, but it grows like a language in society.The paper attempts to investigate whether decriminalization of adultery law was a wise decision made by the judiciary for promoting equality of women in Indian society or was it a license to promote extramarital affairs in the society without fearing any punishment from the married husband or the society.
Equality
Introduction
When a human society comes into existence, marriage and family are the components that people adapted to become an economically prosperous and politically established society. With the adoption of marriage and family as their fundamental components, norms and rules are adopted to discipline and organize the functioning of the marriage.
According to the sociologist Alfred McClung Lee, “Marriage is the public joining together, under socially specified regulations of a man and woman as husband and wife” and according to sociologist Malinowski, “Marriage is a contract for the production and maintenance of children”[1]. Broadly speaking, marriage is a contractual, social, and legal approved relationship between a male and a female (after marriage being declared as husband and wife), whereby they achieve a legal and social right to have emotional and sexual relations with each other and having the right to have offspring. Thus, marriage leads to the creation of a family institution whereby they all enjoy immunity from being called as having an illegitimate relationship and having or procreating illegitimate children. However, within the society, new thinking – the concept of adultery (a consensual extramarital sexual relationship between married and non – married or with another married partner[2]) was born which was an abomination to marriage or an illegitimate bond according to the whole society and the other married partner.
Adultery developed from the old French word avoutrie, which got its meaning from a distinct Latin verb- Adulterāre, meaning to corrupt[3]. Adulterāre, formed from 2 words (ad – to or near and alter – other)[4] – thus, depicting the bond between partners beyond their respective marriage.
What is Adultery under law of crime
Section 497 of the Indian Penal Code reads as follows-
Section 497. Adultery states – “Whoever has sexual intercourse with a person who is and whom he knows or has reason to believe to be the wife of another man, without the consent or connivance of that man, such sexual intercourse not amounting to the offence of rape, is guilty of the offence of adultery, and shall be punished with imprisonment of either description for a term which may extend to five years, or with fine, or with both. In such case the wife shall not be punishable as an abettor”[5].
Adultery under law is defined as: “a voluntary extramarital intercourse with person of opposite sex, whether unmarried (single) or married (double adultery)”. Under the section related to adultery under Indian penal code, the person is blameworthy of cuckoldry if –
Person had involved in copulation with the woman or another man,
Who is and the person recognizes or has a suitable basis to accept the individual be either the spouse of another man or husband of another’s wife,
Without the consent of that person,
The physical relations not leading to rape.
Thus, according to the above-mentioned provision, where the third party or had relations sexual in nature with the aggrieved party’s wife, the husband could also prosecute the paramour of his wife. However, adultery will be no offence if the married person has sexual relations with –
An unmarried woman,
A widow,
A wedded lady whose spouse agrees to it,
Divorced woman.
However, the section also includes a provision whereby the wife cannot be punished as an abettor[6].
Distinction between Adultery and Rape
Sex act with a bachelor lady, widow, divorced woman, or with a wedded lady whose spouse agrees to it is no adultery. However, copulation with a woman whether married or un married amounts to rape.
Infidelity can’t be done by spouse with his married partner, while assault can be done against his married partner. (in the event that spouse being under 15 years old). Sexual assault can be committed against any woman; however, adultery can be done with wife or husband of the married partner.
The act amounts to rape if the intercourse is done without the consent and against the will of the woman. (act will amount to rape even if the consent of woman is obtained but the condition provided that woman being a minor). However, the act amounts to adultery if copulation is committed by having consent of the partner.
Lastly, assault is an offense against the lady while infidelity is a wrong against marriage[7].
How law led to defeat of constitutional validity of constitution
Article 14 of the Constitution of India reads as follows:
Constitution
“Equality before law –The State shall not deny to any person equality before the law or the equal protection of the laws within the region of India”[8].
The constitution of India guarantees the Right to Equality to its citizens through articles 14 to 18. The dogma of impartiality before law guaranteed by the Indian Constitution is a necessary outcome of Rule of Law permeating the Indian constitution. Article 14’s basic objective is to promote equality of status and opportunity amongst all persons, citizens or non – citizens. The aim is to promote equality of status and opportunity referred to in the Preamble of our constitution. However, article 14 (consisting of the principle of “non-discrimination”) is to be read with rights guaranteed by other articles like article 21 guaranteeing “right to life”. Together with articles 21 and 14, they become the heart of the chapter consisting of Fundamental Rights[9].
Article 21 of the Constitution of India reads as follows:
“Protection of life and personal liberty- No person shall be deprived of his life or personal liberty except according to procedure established by law”[10].
When the constitution of India came into effect on 26 January 1950, every Indian was gifted with the fundamental rights, out of which Article 21(Protection of life and personal liberty), which when further expanded by Apex court in the case of “Maneka Gandhi vs. Union of India”, the court introduced a new dimension under article 21 (the right to live with personal liberty). Apex court said that the right to life does not mean the right to animal existence, but a right to live with human dignity, which was the greatest promise given by the Indian constitution and correctly interpreted by the Apex court in Maneka Gandhi’s case. Thus, equality now fully weds the constitution of India and thereby delivering the idea of equality from the constitution to the society more effectively. The principle (Neither Parliament nor any state legislature can transgress the principle of equality was recapitulated by the Apex court in Badappanavar in the following words-
Equality is a fundamental tenant of constitution of India, and any treatment of equals unequally or unequal as equals be violation of basic structure of Constitution of India.
Equality before the law and equal protection of laws is the quintessence of Right to Equality, a fundamental right guaranteed under the Constitution of India. Article 14 (with the underlying purpose to treat all persons similarly circumstanced alike both in privileges and liabilities imposed) bars discrimination and discriminatory laws and is now working as an effective mechanism against arbitrary or discriminatory state action. Article 14 (which states- The State shall not deny to any person equality before the law or the equal protection of the laws within the region of India), involves two significant doctrines within it.
The first is the negative concept (which ensures that all are equally subject to the ordinary law of the land and no person irrespective of his rank or posts or position, is above law). The second is the positive concept (whereby every person is subject to “equal protection of laws”). The second concept postulates the application of the same laws alike and without discrimination to persons similarly situated. Therefore, it denotes equality of treatment in equal circumstances. The Apex court in – “Shri Shrinivasa Theatre vs Government of Tamil Nadu[11]” has said that the two expressions “Equality before the law” and “Equal protection of laws” do not mean the same thing despite there may be much common in them. “Equality before the law” is a dynamic concept and has many facets. Out of which one of the facets includes that there shall be no privileged person or class that shall be above law.
Another facet includes the obligation of the state to bring about through machinery of law a more equal society. For equality before the law can be predicated meaningfully in an equal society. Concludingly, the legislature is entitled to make a reasonable classification for purposes of the legislature and treat all in one class. Since article 14 forbids class legislation and a classification made favoring anyone may be held discriminatory, if being arbitrary, discriminative, and has no reasonable basis on which classification was made. Thus, in relation to article 14, the Apex court underlined the following principle-“Article 14 of constitution assures impartiality among equals, it’s goal is to protect people equivalently placed in contrast to unequal treatment. It would not operate on logical classification. A person setting up a grievance of denial of similar treatment by law should establish that between persons similarly circumstanced, some were treated to their prejudice and differential treatment had no reasonable relation to object sought to be achieved by law”[12].
After understanding the notion of impartiality which is guaranteed by the constitution of India, let us understand how the 158-year-old colonial law led to the defeat of the validity of the constitution. But before it, let us see how society looks at women and marriage. What are the biases which exist against woman and how the woman was previously seen as non-entity gaze of the law.
In India, because of the cultural and societal accepted norms, the prevalence of the regressive thoughts and beliefs that men are somewhat different and superior to women, the woman being impure because of her mensuration cycle or woman being burden over her parents (issues like the responsibility of getting her married and issue of storing the necessary amount of dowry, the woman upon being married leaving her parents or wouldn’t carry her family’s name), had, is and will always lead to prevalence and practices of violence in society.
Indian society being plagued by these regressive, inhuman practice of violence against women and the reforms which were introduced in reaction to these practices which attempted to cure these regressive mindsets of men and to stop the violent practices against women, such things in society led to a widespread increase of crime which was not in the best interest of the existence of healthy society. Addressing all those problems which existed in society and in an attempt to solve all these problems, many laws were introduced to not only protect the woman, but also to penalize the discriminatory practices practiced against them.
But even after it, why the conditions are still worse?
Although there may be several reasons such as improper enforcement of laws, several technical loopholes in laws that were ignored and never worked upon, but the foremost and the most important reason for the failure of these laws is because making normative changes in the law though would lead to social reformation in society but it would not make the law an effective social control unless and until there will beEqual Domination in society, Control, and Entitlement (it means the law does not reflect the female experiences, how they felt after going through such violence but the punishments were only based on male experiences, how they felt about women (as helpless victims to such violent crimes), and entitlement not being based to be in the best interest to benefit men or in the best interest of the patriarchal society).
Now viewing marriage, the lawmakers thought that adultery would make the matrimony/ marriage impure. Since in the eyes of society, the relationship of man and woman is seen as one of the owner and owned where the wife is like any property which is owned by his husband. Since the society applies the owned and owner concept in marriage, they view the union of husband and wife as a contract whereby the property (wife) is owned by husband (owner). Thus, the lawmakers who were themselves endowed with such thinking while making the law, therefore, the law also reflected their thinking and became blatantly biased against the woman.
The various observations noted from Apex court and High court judgments lead us to the conclusion that man can commit adultery. The married woman who is involved in the conduct is not punishable as an adulteress because she is treated as a “victim” not an “author of the offense”. This thinking comes from the belief that people have where they consider women as non-person. The free will of a woman is not considered and the section is neither concerned with the intentions of women for the adulterous act. Moreover, women whose lives are affected by the crime of adultery – “the aggrieved wives”- if the adulterer is married, are not deemed to be necessary and interested parties in the trial or its criminal consequences. It is because a woman is looked down upon as an object, as inanimate property, whose rights are almost transferrable. The woman is thus considered as a property or non-entity gaze of the law.
Moreover, as written above, if a married man has sexual intercourse with an unmarried woman it will not be considered an adulterous offense. It is because the law sees the unmarried woman as no one’s property and even her parents and brothers cannot make the adulterer liable because they hold the woman in trust and have no ownership rights that could allow the woman’s parents or her relatives to punish her paramour.
DOUBLE STANDARDS OF LAW
Double Standards of Law
Even under section 497, if the husband has a sexual intercourse with the woman who either is an unmarried woman, a widow, married woman whose husband consents to it or a divorced woman, the adulterer’s own wife could not make his husband liable for the adultery. Even the complaint can only be done by the aggrieved party that is husband of the woman who had herself engaged in the sexual intercourse with her paramour. Thus, the offence reflects the discrimination which correctly defeats the constitution validity of equality[13].
How the decriminalization of adultery led to promotion of equality in the human society
A five-judge constitutional bench was unanimous in holding section 497 of Indian penal code, dealing with the offence o adultery as unconstitutional and stuck down the penal provision. The bench comprising o Dipak Mishra, Indu Malhotra, DY Chandrachud, Justice Nariman and AM Khanwilkar declared the section related to adultery as against constitution. The Chief Justice of India and Justice Khanwilkar declared Section 497 of the Indian Penal Code and Section 198 of Code of Criminal Procedure relating to the indictment of the offenses against marriage as unlawful since the provision of infidelity was in a greater amount of supportive of man, so it was decriminalized so as to give equivalent right to lady. In the previous judgements like-
Where Apex Court held that section is not discriminatory between man and woman, that is an under inclusive definition is not necessarily discriminatory. The court further held it does not stand against Article 14 or 15 of Indian Constitution. Similarly, the absence of hearing the woman, impleading her as a necessary party to prosecution under section 497 does not violate Article 21.
In this case court, referring itself not an arbiter of wisdom or the philosophy of the law but the arbiter of the constitutionality of the law, the court observed that there is a reverse discrimination “in favor” of woman rather than “against”.
However, upholding the constitutional validity of the section 497 but a fact is to be also realized that the man is not always the seducer in every case, and the laws involving the dynamic concept within them, that is the law have the capacity to be evolved in order to address the new evil practices practiced in the society, it is the duty of the legislature to decide whether section 497 requires any changes to reflect the “transformation” which the society has undergone. However, in Joseph shine vs. Union of India[16], the Apex court finally overruled its previous judgements given in Sowmithri Vishnu vs. Union of India and V. Revathi vs. Union of India, by declaring section 497 of Indian penal code and Section 198(2) of CRPC as unconstitutional. The court further declared Section 497 as a clear violation of Article 14, 15 and 21[17].
Main highlights of the verdict given by Apex court in decriminalization of Adultery
CJI Dipak Mishra said that adultery can be a ground for divorce but not as a criminal offence
CJI Mishra and Justice Khanwilkar said mere adultery cannot be a crime, but if any aggrieved spouse commits suicide because of life partner’s adulterous relation, then it could be treated as abetment to suicide.
The bench held that adultery can be treated as a civil wrong for dissolution of marriage
Delivering its judgement, the apex court provides that unequal treatment of women invites the wrath of the constitution[18].
In the society, a union of marriage was seen from
owner and owned concept
where woman was seen as non- person and a mere property of the husband
the marriage being a permission from woman pledging her sexual autonomy to her husband
Disallowing woman from having consensual sexual relations with any person after marriage
Woman after marriage having only that relationship with her marital parents as that of property with the persons who only hold it in trust
And many other discriminations which denied woman enjoying equal rights in the marriage, thus in order to uplift their conditions in society made apex court struck down the 158-year-old law by declaring it unconstitutional (Justice Chandrachud said that there cannot be any limitation on the desire (with whom she want to have sexual relation) of woman. The section 497 grants a married person’s sexual intercourse with an unmarried woman, with woman the husband consents to it, divorced woman or a widow as an exception and not be recognized as an adultery but a married woman having consensual sexual relation with her paramour as an adultery and a criminal offence. Isn’t it an un equality and infringement of the notion of impartiality guaranteed by the fundamental rights?
Thus, it was in response to such an issue and discrimination against woman, the development of modern beliefs and thoughts that woman are free to have sexual relations with any one she wants in the society and viewing this colonial era law an infringement on not only on the notion of impartiality but on the woman’s right to enjoy and exercising her freedom in society thus, the apex court decriminalized the adultery in order to promote equality in society, to remove constraints upon woman so that she may freely have consensual sexual relations with any one she wants.
Conclusion
It is a common practice everywhere to classify the human community based on sex into groups of men and women. The biological fact of sex has created much difference between them. The aims, objectives, desires, aspirations, duties, and responsibilities, dress styles and behavioural patterns, roles, statuses of men and women are different. Nowhere in the history of humanity men and women were treated alike and assigned statuses alike. Women have not been able to lead a life exactly on par with men and women were treated alike and assigned statuses alike. This does not mean that men and women represent two different cultures as such. They represent one way of life, one culture, and one heritage. The type of statuses assigned to women in any society reflects the nature of its cultural richness and the level of its civilizational standards. Hence, Swami Vivekananda said, “that country and that nation which did not respect woman have never become great nor will ever in the future”. The degree of freedom and respectability gave to the woman to move about and take part in public activities gives a good idea of the nature of the society to which they belong. The status accorded to women in society symbolizes its level of progress. The spirit of a civilization can be assessed by how women are treated by the members of that civilization[19].
[1]C N Shankar Rao, Principles of Sociology with an Introduction to Sociological Thought, 357 (S. Chand And Company Limited, Ram Nagar, New Delhi, 7th edn., 2012).
[1]C N Shankar Rao, Principles of Sociology with an Introduction to Sociological Thought, 357 (S. Chand And Company Limited, Ram Nagar, New Delhi, 7th edn., 2012).
[1]C N Shankar Rao, Principles of Sociology with an Introduction to Sociological Thought, 357 (S. Chand And Company Limited, Ram Nagar, New Delhi, 7th edn., 2012).
[2]Definition of adultery, 2020, India, available at: define adultery (last visited on Feb. 6, 2021).
[3]Why Is It Called “Adultery” When Its Not A “Particularly” Adult Thing To Do?, DICTIONARY.COM, available at:https://www.dictionary.com/e/adultery/ (last visited on Feb. 6, 2021).
[4]Adultery, Merriam-Webster, available at: https://www.merriam-webster.com/dictionary/adultery#:~:text=Although%20both%20words%20come%20from,of%20the%20Latin%20word%20adolescere%20( (Last visited on Jan. 6, 202).
[5]The Indian Penal Code, 1860 (Act 45 of 1860), s. 497.
[18]Supreme Court strikes down adultery as an offence: Highlights, THE TIMES OF INDIA, available at: https://timesofindia.indiatimes.com/india/supreme-court-strikes-down-adultery-as-an-offence-key-highlights/articleshow/65975511.cms (last visited on Jan. 31, 2021).
As society transforms from a simple to a complex society, so are the preferences, occupations, and thinking patterns of the people. With people aiming to achieve an economically developed society, it paves a way for rapid development and innovation in the technological sector.
The concept of the internet and its use in cellular technology was also a gift from that innovation in the technology area. The rapid development of this cellular technology has made people have access to the internet more easily and cost friendly. Unlike the use of traditional dongles and internet routers, cellular technology emerged as a better solution that helped people to surf the internet anywhere in the world. However, the constant evolution of this technology (from 1G to 4G) having various points of focus like low latency, energy dissipation, higher bandwidth utilization, and dense connections had been proved to be a catalyst in the development of Industry 4.0.
Introduction of the IoT with 5G network
5G and IoT is not merely a new generation of technology but a promising tool to change the very fabric of the virtual society. With the 5 G’s primary features like- Expanded Bandwidth (adoption of LTE LPWAN), Lower latency Communication Capability, Lesser Response Time, and establishing Denser Connections (by building more 5G network transmitting nods), it aims to design a new mobile ecosystem. With the introduction of 5G network in the world, it would serve as connective tissue for the Internet of Things, therefore, becoming an effective solution towards boosting a nation’s stagnant industrial and economic development. This new approach (IoT with 5 G network) would revolutionize the concept and the functioning of the industries (like Linking and Controlling not just Robots but also Medical Devices, Industrial Equipment, and Agricultural Machinery) around the world.
As more devices become integrated with the 5G, it will emerge as great news for the Internet of Things market. With Enhanced Mobile Broadband, Massive Machine Type Communication, and Low Latency Communication being its fundamental focus, it would ultimately lead to greater performance because of its ability to quickly interact with other Internet of Things devices such as cell phones and laptops, applications in the form of apps or websites, etc. Therefore, with 5G data-transfer speeds (that will be better and a lot faster than current LTE networks), it will prove to be beneficial as it will let IoT devices communicate and share data more rapidly. The idea behind the 5th generation of satellite telephone is to have a flexible network that would have the ability to not only handle more devices but its capacity to handle them better, efficient, and fast.
Thus, with various 5G capabilities, the whole world will benefit from greater applicability of the fifth generation associated IoT gadgets like –
Driverless Cars
Driverless vehicle technology is quite possibly the most expected 5G integrated IoT application. Development and Innovation in technology is progressing quickly to help robot vehicles become a part of reality. 5G integrated IoT technology will be a huge empowering agent for self-sufficient vehicles to develop as vehicles. The objective behind this is a vehicle-to-everything (V2X) communication network. This will empower vehicles to naturally react to items and changes around them momentarily. With the features of the 5 G network, vehicles will be able to send and get messages in milliseconds to break or change courses because of street signs, dangers, and individuals going across the road.
Digital City
Many countries around the world are adopting digital transportation frameworks and are planning to support connected vehicle technology. It could be used by using communication systems that support intelligent traffic management.
Connected vehicle technology will empower bidirectional communications from one vehicle to another (V2V), and vehicle to everything, (V2X) to encourage security in transportation frameworks.
The Era of 4.0 Industry concept
The advantage of 5G integrated IoT devices in industrial development is remote adaptability, the diminished expense of applications that are impossible with current wireless technology. Since the IoT applications require links and the current technology poses many technical challenges such as Wi-Fi does not have the suitable and necessary range, the service of administration needed for mechanical control, and the incapability of the cellular technology. However, with the introduction of the 5G network, industrial applications and robots could go completely wireless and emerge a productive industry
For instance, the concept of Industry 4.0, where people and machines would work together and cooperate. The robots can perform delicate or tougher tasks and the workers would perform less physical but more authoritative or technical functions. For everything to fall into place, the robot should be inconsistent correspondence with the industrial facility and its environmental factors. It must be portable, have a total actual scope of movement, and ecological sensors. These advances will empower harmonious human-machine associations where each assumes the part it does best.
The Smart City
Digital health trackers and smartwatches will be the most crucial market for the 5G cellular technology. 5G integrated IoT devices like telephones, tablets, mobiles, and PCs, etc would work more efficiently without a buffer or a lag[1].
Conclusion
There is no doubt that the 5G integrated IoT devices would have a transformational impact on the world’s economy. The approach that the blog talked about is an effective solution in boosting up a nation’s economy. However, to have the advantage of this cellular technology approach, the nation would first go through many significant challenges such as investing in the manufacturing of 5G-congruent gadgets, the producers would have to ensure the product’s quality and compatibility as to make sure the desired performance is achieved. Moreover, various IT companies would have to adopt aggressive IoT testing campaigns, would have to analyze the consumer’s demand for every smart device preference, etc. which would take years and in case the product fails, the companies would face huge financial losses. Moreover, because of the technical limitations faced by the 5G network, its rollout would take many years.
In today’s world, with rapid technological innovation and development, the culture posed by human society is that of an internet user. Networking protocols on which the Internet runs and social media platforms have become an intrinsic part of human life. Although the platforms like Facebook, Snapchat, Instagram, Telegram aimed to bring and connect people, however, soon became victims of cybercrimes. However, the main concern is that despite having laws and policies oriented towards arresting the increased cases of Cybercrimes, the social media platforms, and the internet users become a victim of Data Breaches and Network Crimes. With the Internet becoming a backbone of our global economy, Cybercriminals have entered the business of breaching secure firewalls to steal sensitive data like the user’s personal information to slow down the nation’s economic growth and checkmate its national security.
What promotes Cyber Attacks?
Psychological Aspect
Humans need trust in their lives because this is the core aspect behind the existence of human society. The increased dependence upon the Internet and IoT gadgets resulted in humans having a positive attitude towards the technological infrastructure, which results in people falling for phishing scams and digital frauds.
Behavioural Aspect
Since to the Hackers, life is like a “LIVE FREE or DIE-HARD” concept, and the limitation that our internet culture lacks the understanding to foster enhanced Cyber Security, very little stops the hackers from penetrating the most sophisticated technology and steal the user’s data.
Therefore, these two aspects promote hackers to take advantage of the vulnerabilities posed by our current internet architecture, which are called Cyber-attacks.
Need for Cyber security
In the wake of the rise in Cyberattack incidents around the world and the massive expenditure done by the nation to get rid of them (by paying the Ransom demanded), the world realized that every country should be on the same page to understand the nature of Cybercrime and the need for Cyber- WHO. Although there is no proper definition to capture the entire aspect of Cybersecurity, however in simple terms it means the body of technologies and practices to protect against the hacker’s unauthorized access, destruction, or manipulation of the victim’s computer data.
GLOBAL CYBERSECURITY AGENDA
With an estimated 4 billion Internet users around the world, the global issues related to Cybercrimes and the realization for implementing Cybersecurity solutions could differ among countries. International Telecommunication Union membership includes the-
Least developed countries,
Developing and Emerging economies, and
Industrialized countries.
In Conclusion, International Telecommunication Union is a global platform where different issues about network safety and cybercrime and aim to arrive at a level where every problem and issue is tended to and tackled. The solution is carved out keeping in mind a nation’s economic, political, and social challenges, significant priorities, and the public and local initiatives of that country. ITU has hence been set up as a worldwide system for discourse and global collaboration pointed toward proposing techniques for answers for improving security and trust in the data society. The Global Cybersecurity Agenda (GCA) aims to solve the challenges, issues, and problems faced by countries in their fight against #Cybercrimes and their effort to achieve #Cyber peace. At the second phase of the World Summit on the Information Society (WSIS) in Tunis in 2005, ITU was entrusted to take the lead as the sole facilitator for Action Line C5, “Building confidence and security in the use of information and communication technologies (ICTs)”[1].
On May 17, 2007, the ITU launched the Global Cybersecurity Agenda (GCA).
“The GCA is a global framework for dialogue and international cooperation to coordinate the international response to the growing challenges to cybersecurity and to enhance confidence and security in the information society. It builds on existing work, initiatives, and partnerships with the objective of proposing global strategies to address today’s challenges related to building confidence and security in the use of ICT’s”[2].
Five pillars of the ITU Global Cybersecurity Agenda
Legal Framework
The first strategic pillar focusses on the following key aspects-
Deal with legal challenges faced by a nation and authorize a country to set up a response body responsible for investigation and prosecution of crimes and the provisions for punishment for non-compliance or breach of law.
Responsible for Guiding and advising legislation on how to deal with Cybercriminals in an internationally compatible manner.
Research upon the lacunas posed by the current legal frameworks that permit criminals to operate between countries without fearing punishment.
2. Technical Measures
The second strategic pillar focusses on the following key aspects-
Responsible for researching and carving out a strategy for the technical challenges arising in Network Security.
Focusses on the technical and procedural measures for addressing loopholes or possible breach possibilities in new software products.
3. Organizational Structures
The third strategic pillar focusses on the following key aspects
Focus on optimal response strategies and the institutions that can help countries in dealing with the prevention, detection, response to, and crisis management of Cyberattack, including the protection of countries’ critical information infrastructure systems.
This work area should develop a generic framework for functional organizational structures that can help countries deal with cyber threats and the misuse of ICTs for malicious purposes.
4. Capacity Building
The fourth strategic pillar focusses on the following key aspects-
Elaborating strategies for concrete capacity-building mechanisms to raise awareness, transfer know-how, and boost Cybersecurity on the national policy agenda.
User awareness, technical capacity, and information exchange are some of the key factors in building Cybersecurity from the grassroots upwards. This work area will consider the effective measures, awareness campaigns, training initiatives that can be undertaken to build human, technical and institutional capacity, and awareness of the issues key to preserving Cybersecurity.
5. International Cooperation
The fifth strategic pillar focusses on the following key aspects-
Develop proposals on a framework for a multi-stakeholder strategy for international cooperation, dialogue, and coordination in dealing with cyber threats.
The Information Society is borderless, which means that the response mechanisms dealing with Cyber threats must be as borderless as Cybercriminals’ activities.
Cooperation is vital at different levels and through different means — from the monitoring of funds and transfers of the proceeds of criminal activities to cooperation in dealing with international crime syndicates and paedophilic rings[3].Also Read: Rights of undertrial prisoners in India
Setting achievable goals
The Global Cybersecurity Agenda is made up of seven main strategic goals:
Elaboration of strategies for the development of a model cybercrime legislation that is globally applicable and interoperable with existing national and regional legislative measures.
Elaboration of strategies for the creation of appropriate national and regional organizational structures and policies on cybercrime.
Development of a strategy for the establishment of globally accepted minimum security criteria and accreditation schemes for software applications and systems.
Development of strategies for the creation of a global framework for a watch, warning, and incident response to ensure cross-border coordination between new and existing initiatives.
Development of strategies for the creation and endorsement of a generic and universal digital identity system and the necessary organizational structures to ensure the recognition of digital credentials for individuals across geographical boundaries.
Development of a global strategy to facilitate human and institutional capacity building to enhance knowledge and know-how across sectors and in all the above-mentioned areas.
Proposals on a framework for a global multi-stakeholder strategy for international cooperation, dialogue, and coordination in all the above-mentioned areas[4].
[1]“ITU Global Cybersecurity Agenda (GCA) A Framework for International Cooperation in Cybersecurity”, available at:https://www.intgovforum.org/Substantive_2nd_IGF/ITU_GCA_E.pdf (last visited on June 27, 2021).
[2]“Global Cybersecurity Agenda”, wikia.org, available at:https://itlaw.wikia.org/wiki/Global_Cybersecurity_Agenda (last visited on June 27, 2021).
In today’s world, every country goes to great lengths to secure itself against online cyber threats and attacks. Recently, Dominos India has been the most recent victim of an online cyber-attack whereby the order details of 18 crore Pizza orders (which includes 130TB of worker information records and client’s details) were leaked. The online attackers who are liable for the data breach additionally made a site page on the dark web that pulls the information for any customer details. The information has been made openly accessible and anybody can look for it without any problem[1].
Witnessing the unfamous AIR INDIA- SITA BREACH case, Colonial Pipeline case, the UHBVN Ransomware attack, or the attack on Ireland’s Health service had now raised serious questions about a secure and a protected Cyber Space around the world. The hackers have developed various weapons in Cyber Space that help them to crack and break through a secure firewall, get into these systems, and steal or encrypt the user’s data.
Understanding the concept of Ransomware Software (#St.PetersburgParadox)
Ransomware (Cyber Extortion) is malicious software planted in the victim’s computer illegally either through an email attachment (in form of .exe attachments) or through corrupted video files (in form of .mp4.exe) that results in the encryption of a computer’s data till victim pays the demanded ransom. The payment demanded by such software is in the form of bitcoins. With wider availability, accessibility, and the increased use of the internet in Corporate as well as in Domestic life, sometimes results in people becoming an unfortunate victim of such Ransomware or Cyber-attacks.
History and Evolution OF Cyber Extortion Industry
The first attack (termed as PC Cyborg) took place in 1989 whereby 20,000 floppy disks were given to AIDS researchers that contained a malicious program. The software remained dormant in the victim’s PC until the user’s PC was powered on 90 times. The dormant program once activated encrypted the user’s device until the victim had made a certain amount of payment for the software lease[2]. Unlike early ransomware developers who created their encryption code, today’s attackers are developing and evolving the techniques that allow them to penetrate easily in any device and making the encryptions harder to crack. In this era, the attackers generally use Spam, Spear phishing, and Watering Hole techniques that easily infect the user’s computer instead of traditional techniques such as phishing emails or corrupt floppy disks.
The research evaluates that recovered instalment sums are rising. However, the combined expenses of harm coming from such attacks are far more terrible, nearly multiplying a year ago from an expected $11.5 billion of every 2019 to $20 billion out of 2020[3]. Generally, the victims are given a deadline for the payment, and upon non-payment, either the files are destroyed, or ransom is doubled.
Crypto Locker was the most lethal and profitable malware attack of its time. The report showed that between September and December 2013, the software had infected more than 2,50,000 systems. However, when the recovery of encrypted files compromised by the malicious software was made possible, it led to the birth of other ransomware software like Crypto Wall and Torrent Locker. Till 2016, Crypto Wall was used, targeting many Business corporations. In 2015, Crypto Wall had extracted over $18 million from the victims.
In 2015, nearly 160 individuals were affected by another software named Tesla Crypt, therefore, extracting $76,522 from those victims. The people were made to pay the ransoms in Bitcoins. The reports also showed that the victims were sometimes used digital wallet apps like PayPal or My Cash cards[4].
Existing Cyber- Laws to combat with Cyber Extortion Attack in India
With the world’s increased dependence upon the Internet and the rapid development of cyberspace, there has been a rapid rise in network-related crimes. The countries witnessing increasing cases of hacking, data theft, ransomware attacks, cyberstalking, obscenity, and child pornography, etc. around the world, India enacted the Information Technology Act, 2000 to combat cybercrimes. Before the Information Technology Amendment Act, 2008, the statute was incompetent to handle and deal with the offenders of Cybercrime. Although the statute did give legal recognition to electronic commerce but failed to deal with Network related Crimes.
However, with the evolution and the rapid development of Network related crimes, an amendment to the Information Technology Act, 2000 was introduced and it led to major changes like –
Amended older provisions and introduced new provisions in the Indian Evidence Act, 1872
Covered and defined a wide variety of Technology-Enabled Crimes.
Providing the Government of India with the power of surveillance, monitoring and blocking data traffic.
Therefore, with the Information Technology (Amendment) Act, 2008, the IT act became dynamic in nature and capable enough to penalize the Cyber Criminals.
The following are the provisions in the Information Technology Act, 2000 that penalize cybercriminals (punishment for the offense ranging from two years to life imprisonment, and a fine, or both) and prevent ransomware attacks in India.
In a Ransomware attack, if the attacker had infected the victim’s computer or any device with computer virus or worms, or had breached the victim’s privacy, the offender will be charged with Section 43 (c) and 43 (e) read with Section 66 of the Information Technology Act, 2000.
Section 66E. Punishment for violation of privacy -: Whoever, intentionally or knowingly captures, publishes or transmits the image of a private area of any person without his or her consent, under circumstances violating the privacy of that person, shall be punished with imprisonment which may extend to three years or with fine not exceeding two lakh rupees, or with both[5].
In a Ransomware attack, if the attacker had infected the victim’s computer or any device with computer virus or worms, the offender will be charged with Section 43 (c) and 43 (e) read with Section 66 of the Information Technology Act, 2000.
Section 66F. Punishment for cyber terrorism -: (1) Whoever, –
(A) with intent to threaten the unity, integrity, security, or sovereignty of India or to strike terror in the people or any section of the people by–
(i) denying or cause the denial of access to any person authorised to access computer resource; or
(ii) attempting to penetrate or access a computer resource without authorisation or exceeding authorised access; or
(iii) introducing or causing to introduce any computer contaminant,
and by means of such conduct causes or is likely to cause death or injuries to persons or damage to or destruction of property or disrupts or knowing that it is likely to cause damage or disruption of supplies or services essential to the life of the community or adversely affect the critical information infrastructure specified under section 70; or
(B) knowingly or intentionally penetrates or accesses a computer resource without authorisation or exceeding authorised access, and by means of such conduct obtains access to information, data or computer data base that is restricted for reasons of the security of the State or foreign relations; or any restricted information, data or computer data base, with reasons to believe that such information, data or computer data base so obtained may be used to cause or likely to cause injury to the interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality, or in relation to contempt of court, defamation or incitement to an offence, or to the advantage of any foreign nation, group of individuals or otherwise,
commits the offence of cyber terrorism.
(2) Whoever commits or conspires to commit cyber terrorism shall be punishable with imprisonment which may extend to imprisonment for life[6]
Section 70. Protected system -: (1) The appropriate Government may, by notification in the Official Gazette, declare any computer resource which directly or indirectly affects the facility of Critical Information Infrastructure, to be a protected system[7].
Section 72. Penalty for Breach of confidentiality and privacy -: Save as otherwise provided in this Act or any other law for the time being in force, if any person who, in pursuance of any of the powers conferred under this Act, rules or regulations made thereunder, has secured access to any electronic record, book, register, correspondence, information, document or other material without the consent of the person concerned discloses such electronic record, book, register, correspondence, information, document or other material to any other person shall be punished with imprisonment for a term which may extend to two years, or with fine which may extend to one lakh rupees, or with both[8].
Punishment Under Indian Penal Code, 1860
During Ransomware attack, whereby offender had infringed the victim’s right to privacy and had committed the offense of voyeurism against the plaintiff, the accused will be held liable under Provision 354 C of Indian Penal Code, 1860.
354C. Voyeurism.—Any man who watches, or captures the image of a woman engaging in a private act in circumstances where she would usually have the expectation of not being observed either by the perpetrator or by any other person at the behest of the perpetrator or disseminates such image shall be punished on first conviction with imprisonment of either description for a term which shall not be less than one year, but which may extend to three years, and shall also be liable to fine, and be punished on a second or subsequent conviction, with imprisonment of either description for a term which shall not be less than three years, but which may extend to seven years, and shall also be liable to fine[9].
If the accused had installed a ransomware software in the plaintiff’s device illegally and without his/her consent, the defendant will be charged under Provision 426 and 427 of Indian Penal Code, 1860.
Section 426. Punishment for mischief. -Whoever commits mischief shall be punished with imprisonment of either description for a term which may extend to three months, or with fine, or with both.
Section 427. Mischief causing damage to the amount of fifty rupees. – Whoever commits mischief and thereby causes loss or damage to the amount of fifty rupees or upwards, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both[10].
Apart from the criminal liability, the action of the Ransomware attack to a plaintiff’s device may even impose a Civil liability on the accused. The accused can be booked under the offense of Trespass to Goods. Since a ransomware attack is the intentional harm to the victim’s computer without his/her consent, the offense could be triggered, and the accused will be charged with the offense.
Conclusion
The Cyber Crime has been the only part of Criminal industry that has promised staggering results. As we notice, at least every country’s individual as well as business corporations has been the victim of the Cyber Crime Industry. The malicious software or Ransomware that has been planted in the victim’s computer had resulted in attackers not only getting their demanded ransom but left a real picture of the Ransomware Industry in the world. It is high time that each country must adopt new means and to re- strengthen their laws to fight with these online threats and malicious software. As we have witnessed several instances wherein India’s business corporations have become subject to this Ransomware industry, and if proper measures are not adopted then the industry would itself become influential enough to significantly impact the nation’s future economy and security.
This paper will give the reader complete and detailed information and knowledge with respect to the topic namely “INSANITY AS A DEFENCE UNDER INDIAN PENAL CODE, 1860” and the reader will come across the concept in detail. It is observed that the aforementioned concept is not often used but is avoided by the respected counsels before the court of law as the concept is popularly known for being difficult to prove before the court, therefore it needs to be clarified which as the outcome can pave the way to justice for many innocent falsely accused parties or which may also lead the guilty criminals to jail.
The defense of ‘Insanity’ is used and taken into the prosecutions of the criminal proceedings of the courts on the grounds of assumptions that the defendant or the accused person was severely mentally ill or remained of an unsound mind at the very instance of the taking place of the crime been attempted or carried on and at time remained incompetent of judging the nature of crime as well as finding the difference between right or wrong.
The defense of ‘Insanity’ is rather a legal concept than a clinical or a medical concept demonstrating that just suffering from a kind of unsoundness of mind does not prove his insanity and the load of proving the aforementioned concept with evidence still lies on the defendant. It is often believed to be a tough job to prove or to defend the aforementioned concept in the court of law for the litigators.
It is evaded as to lunacy or brain sick, mental irregularity, sickness of brain et al. an mentally deranged or an insane individual who cannot contemplate as an ordinary person. His ability of realizing matters is debased. Its known as ‘non-compos mentis’ [NOT OF SOUND MIND] (possessed of a sound mind). Its first known use of this maxim is from the year 1607.
In the event that insanity, be seen as immunity above all else it must be obviously disclosed concerning what it is. There being no norm of insanity, it gets hard to characterize insanity prompting the nonappearance of mens rea.
The abovementioned concept has been discussed in the Section 84 of the (IPC) Indian Penal Code, 1860. It says:
Section 84: “Nothing is an offence which is done by a person who, at the time of doing it, by reason of unsoundness of mind, is incapable of knowing the nature of the act, or that he is doing what is either wrong or contrary to law”.
The accompanying standards are to be remembered in applying this section:
1. Each sort of unsoundness is not legitimate insanity; the intellectual personnel must be decimated as to deliver one unequipped for knowing the idea of his demonstration or that what he is doing is not right or in opposition to law.
2. The court would assume the nonappearance of such insanity by default.
3. The weightage of evidence of legitimate insanity is on the denounced, however it is not as hefty as the arraignment.
4. The court must consider whether the charged person experienced legitimate insanity when the offense was committed.
5. In arriving at such a resolution, the conditions which went before, joined in, or followed the wrongdoing are pertinent thought.
6. The prosecution in releasing its weightage of the request of legitimate insanity has simply to demonstrate the essential reality and depend upon the typical assumption of the law that everybody knows the law and the common outcomes of his demonstration.
R vs. Arnold (1724) was the first ever case recorded to be dealing with the aforementioned concept of Insanity. In this case it was noted that Edward Arnold unsuccessfully attempted to murder Lord Onslow and resulted in delivering him some wounds for which he was tried Palais de Justice. It was later proved in the court that the accused person suffered a mental disorder and was noted to be of unsound mind. The court held that:
“If the accused was under the visitation of God and could not distinguish between good and evil, and did not know what he did, though he committed the greatest offence, yet he could not be guilty of any offence against any law whatsoever”.
In the court of justice Ray accused person can ask for immunity for his unsoundness of mind as he was not at all capable of distinguishing among the good and evil and even did not have the foggiest knowledge of the crime he committed. This is well stated in the aforementioned case, and, that test is called the “Wild Beast Test”.
One more test could be found in the Hadfield’s case (1800).
The accused was dismissed from the army on the reason of insanity. He was accused of attempting to assassinate Kind George III. The counsel (Lord Thomas Erskine) of the accused defended him and proved in the court that the accused only pretended to murder the king and is innocent. He said so on the grounds of insane delusion from which the accused suffered at that time. The counsel then stated that the madness was to be dictated by the reality of fixed insane hallucination and that such dream under which the accused acted is the fundamental purpose behind his committing of such serious crime. That test was known as the “Insane Delusion Test.”
At long last, the third test was figured for Bowler’s case (1812). In that case, Le Blanc, J. expressed that the jury needs to choose whether the denounced submitted the offense and whether he was mentally able to distinguish right or wrong under the control of an illusion. After the Bowler’s case, the courts have set more accentuation on the limit of the denounced to separate right from wrong; however, the test was not so clarified.
The M’Naghten Rule:
There is an assortment of criminal safeguarding strategies that a counsel may use while defending his client before the court in a criminal case. Be that as it may, regardless of how it is depicted in media outlets, the insanity safeguard is not anything but difficult to utilize. So as to be not liable as a consequence of mentally deranged, a criminal respondent must meet the meaning of legitimate insanity under the jurisdiction’s dictionary.
Overview of the M’Naghten Rule:
The M’Naghten Rule (or test) was built up by the English Upper House of the English Parliament during the nineteenth Century and states that:
“Every man is to be presumed to be sane, and … that to establish a defense on the ground of insanity, it must be clearly proved that, at the time of the committing of the act, the party accused was laboring under such a defect of reason, from disease of mind, and not to know the nature and quality of the act he was doing; or if he did know it, that he did not know he was doing what was wrong”.
Fundamentally, this test centers around whether a criminal respondent knew the idea of the wrongdoing or saw directly from wrong at the time it was perpetrated. Consequently, so as to be proclaimed lawfully insane under this test, a respondent must meet one of these two particular standards.
In applying this test, courts may contrast with respect to whether “wrong” being referred to allude to good or legal off-base (or both). Furthermore, a few states have disposed of the rules which characterize a respondent as lawfully insane for not completely understanding what they have done.
Some examples of the M’Naghten Rule:
The best way to show the signs of improvement comprehension of this kind of lawful insanity is to see a couple of instances of how the standard might be applied to specific situations.
E.g., 1: A man killed his spouse and his daughter, and afterward stood by serenely for the cops to show up. Three mental health specialists affirmed that he was excessively mentally sick to comprehend that his criminal demonstrations were not right. He was held innocent by reason of mental derangement and condemned to a decade in a psychological mental-health facility.
E.g., 2: A lady with serious schizophrenia is accused of threatening behavior subsequent to assaulting her nearby neighbor with a scoop. She asserts the neighbor was really a devil who was attempting to reap her spirit. She was held to be innocent by reason of mental derangement hereafter the court of justice discovered that she was incapable to comprehend the idea of her activities.
The above examples show the two distinct ways that a litigant might be proclaimed legitimately insane under this standard.
Critics to the M’Naghten Rule:
This specific test for legitimate insanity has been tested on various grounds. Some have contended that litigants meeting the lawful meaning of insanity do not generally meet the clinical standards for insanity, however, are condemned to obligatory clinical consideration often.
The other criticism is that it neglects to recognize respondents representing an open risk and the individuals who do not, or between impermanent mental issues and long-lasting conditions. In conclusion, some have contended that this standard makes it excessively simple for a respondent with a serious mental issue to escape from responsibilities regarding any act of violations or crime, paying little heed to how enormous a job the turmoil played in the occurrence.
Essential Elements of the Section 84- Unsoundness of Mind:
The concept of unsoundness of mind has not been characterized in the code. However, it has been likened by the courts to mean insanity. The aforementioned section just revolves around with inadequacy of brain which is a consequence of ‘unsoundness of mind’ or ‘insanity’. It is not each kind of insanity which is perceived therapeutically that is given the insurance of this section. Clinical insanity is unique in relation to lawful insanity.
The insanity ought to be of such a nature that it wrecks the psychological workforce of the brain, so much that he is unequipped for knowing the idea of his demonstration or what he is doing is not right or in spite of the law. The aforesaid section will apply even in instances of attacks of insanity and clear spans. In any case, it must be proved in such cases that at the hour of commission of the offense, the accused was surfing from a fit of insanity which delivered him unequipped for knowing the idea of his committed crime.
Kinds of Insanity:
There are no firm standards in regard of what are the sorts of insanity which are perceived by courts as ‘legitimate insanity’. An overview of the case law uncovers that the courts are impacted more by the realities of the case and the idea of wrongdoing, as opposed to any proper proof regarding the sort of insanity that the denounced is experiencing.
The Law divides insanity into two wide categories, specifically:
Dementia naturalis for example people that are of unsound mind since birth; and
Dementia adventitia or accidentialis for example a person who gets insane after birth.
Somnambulism:
Somnambulism is the oblivious state known as rest-strolling or in other words sleep walking and whenever proved before any court of law, will establish unsoundness of brain and the denounced will get the advantage under this section.
Insanity because of Intoxication:
Where insanity is brought about by unnecessary drinking even involuntary or by smoking drugs, such insanity will likewise add up to unsoundness of brain, in the event that it makes an individual unequipped for understanding what he is doing or that the action he is carrying upon is something incorrect or illicit. The charged can take cover under this section, on the condition that the insanity existed at the hour of performance of the unlawful act or crime.
Absence of Motive or a Trifle Matter:
The nonattendance of a solid and satisfactory rationale or a motive to commit a genuine offense like homicide is not without anyone else a proof of insanity. In any case, the nonattendance of a thought process might be contemplated alongside different conditions of a case to decide the subject of mental stability or in any case of the denounced.
The way that the accused caused the passing away for an individual over a frivolous issue would not without anyone else warrant an end that he was of an unsound mind, when no request of insanity was taken under the jurisdiction of the preliminary court, nor was nay material delivered to set up the ground of insanity.
Nature of Violence:
The ruthlessness or the savagery of the act done without anyone else cannot prompt the finish of insanity. Wrongdoing cannot be pardoned by its own abomination. So as to decide if the direct of the blamed was an insane act one must look past or outside the demonstration or wrongdoing itself for proof regarding how much the charged acted with information.
The burden to prove:
The liability to prove the commission of an offence is consistently on the prosecution, the prosecution needs to prove the offense past sensible uncertainty. Yet, onus of demonstrating the components referenced in section 84 of the “(IPC) The Indian Penal Code” are on the blamed (section 105 for the Evidence Act, 1872).
To guarantee the safeguard of insanity, it is needed to demonstrate that at the hour of the event of the episode committed were unsound mind and the principles for burden of proof in instances of insanity are as per the following:
Indictment must be demonstrating past the sensible uncertainty that the offense was committed by denounced with mens rea.
Insanity is a rebuttable assumption.
The denounced can bring oral, conditional or narrative proof to counter the assumption of rational soundness at a time and guarantee guard of section 84 of The (IPC) Indian Penal Code, 1860 and the accused do not need to demonstrate components of section 84 the Indian Penal Code past sensible uncertainty.
Regardless of whether blamed could not set up the elements of section 84 of the Indian Penal Code with respect to the demonstrations submitted by him yet at the same time makes an uncertainty in the brains of the Court. At that point, the Court would be qualified for absolve the denounced on the ground that the overall weight of verification laying on the arraignment was not released.
Conditions helpful in drawing the obstruction with respect to state of mind:
The inquiry whether blamed was of unsound mind at the ideal opportunity for event of wrongdoing fluctuates from case to case this thing must be chosen by the realities of the case. The conditions which help to draw the obstruction with respect to state of mind of the blamed at the ideal opportunity for the offense are:
Motive
Preparation
The desire for concealment
Offering false expressions
The conduct before, at that point and after the commission of the offense
The direct/conduct after the commission of the offense, indicating guilt and attempting to escape from confinement.
Case Laws:
State of Maharashtra V. Sindhi Alias Raman (1987) 89 BOMLR 423
In this case the court held that:
“There is a clear distinction between legal insanity and medical insanity. Medical insanity may be of various types, kinds, and degrees. To what extent medical insanity affects the cognitive faculties of a person will naturally depend upon the nature of that insanity. A person may be suffering from some form of insanity recognized by the doctors as such, but that form of insanity may not necessarily be the unsoundness of mind contemplated by Section 84 of the I.P.C. If despite the insanity, which the doctor may find in a particular person, that person is able to recognize the nature and the quality of the act for which he is tried or if he is capable of knowing that what he was doing was either wrong or was contrary to law, then the benefit of Section 84 of the I.P.C. naturally would not be available to him”.
Ratanlal V. State of Madhya Pradesh 191 AIR 778, 1971 SCR (3) 251
The accused on 22 January 1965 put a match to the grass lying in the khalyan of Nemichand. On being inquired as to why he did it, the denounced said; ‘I burnt it; do anything you want’. The charged was arrested on 23 January 1965. He was referred to a mental clinic. The therapist of the emergency clinic revealed that the accused stayed quiet, was an instance of neurotic burdensome psychosis, and necessities treatment. The report announced the accused to be a maniac as far as the Indian Lunatic Act, 1912. The issue under the steady gaze of the courts was whether insanity may be utilized as protection against a charge of naughtiness by fire with expectation to cause harm under the IPC, section 435. The significant point for this situation was whether unsound brain might be set up at the hour of commission of the demonstration. The Apex Court held that the individual was insane and acquitted him.
Hazara Singh V. The State AIR 1958 P H 104, 1958 CriLJ 555
The aforementioned case was decided on June 24, 1957. In the case it was observed by the court that, Hazara Singh was suffering from hallucination perceiving his wife being traitorous to him. At some point, being upset by those musings, the lunatic committed a vitriol act against her wife which resulted in her death. Clinical proof indicated that he was aware of his act and the related consequences thereafter (the customary information on good and bad). He was found guilty of murdering his wife and was condemned to death in accordance with Section 302 of (IPC) The Indian Penal Code.
Sant Bir V. State of Bihar AIR 1982 SC 1470
It is preposterous regarding why the state government ought to have demanded before delivering the petitioner from the prison when the solicitor was discovered to be totally recouped and totally fit to be released and there was positively no warrant or avocation in law to keep him.
The outcome was that the candidate was kept on spoiling in prison for a further time of ten years, however he was completely recouped and there was no explanation or support to proceed with his detainment in the prison. It is stunning that a completely rational individual ought to have been imprisoned inside the dividers of the jail for very nearly 16 years with no avocation in law at all.
Held: The Apex Court additionally saw that it ought to involve disgrace for the general public just as the organization to keep an individual in prison for more than 16 years without power of law.
Tukappa Tamanna Lingardi V. State of Maharashtra (1990) 92 BOMLR 441 CriLJ 2375
“In a Bombay case a lady, the sister of the blamed/accused gave details at the police station that he had come to banda week after week bazaar on that day, which was Monday, for selling potatoes and onions and further, that one individual by the name Ajjappa (the victim) had squabbled with her over the acquisition of products. The ASI of police who was on the job couldn’t follow the language of the lady who was joined by the accused, the ASI sent a constable to bring the Police Station, the individual grumbled against by the lady. Be that as it may, within the sight of the said constable abruptly the accused assaulted the perished and beheaded him.
Whenever unfolded in the proof that he blamed had the fits for lunacy and, while in such fits, he used to state that a tiger was coming to eat him or to slaughter him. He used to hear the voice of the tiger and used to decline to take his food. The denounced used to have restless nights and if at all he was sleeping, he used to get awaken up and flee under the pressure of dread from the tiger. On the date of the offense, the appealing party was meandering in the timberland of a hefty sickle (buddy koyta) anticipating that a tiger should come. After an intensive examination of the proof and conditions, the high court held that the blamed was qualified for the assurance for segment 84, IPC. The hon’ble court had convicted the appellant for a crime stated under the section 302 of the (IPC) Indian Penal Code and was condemned to suffer the imprisonment for life.
The appellant was also accused of unlawful acts punishable under sections 353 and 332 of the (IPC) Indian Penal Code, 1860 for causing hurt to police constable Desai who was on duty on the scene of crime at the relevant point of time. For the first mentioned offence, the appellant was sentenced to suffer R.I. for a time span of six months and to pay a fine of ₹ 200/-, in default to suffer R.I. for one month. For the latter mentioned offence, the appellant was sentenced to suffer R.I. for a time span of two years and to pay a fine of ₹ 300/-, in default to suffer R.I. for three months. The substantive sentences were ordered to run concurrently”.
Conclusion:
It tends to be said that the laws identifying with this field are entrenched as of now in India. The insanity supplication in India is investigated to the most extreme significance with the goal that no bogus requests can go through and no risky individual can be liberated. The fruitful investigating is obvious from the information of requests being effective for insanity. Thus it tends to be said that the request of craziness/insanity fills its need with an entrenched legitimate framework and subsequently ensures the interests of the general public simultaneously.
The maxim refers to a presumption in law that a child is incapable of forming the criminal intent to commit an offense. It is a principle of jurisprudence which describes the criminal liability of children. In India, doli incapax finds its importance in Section 82 and 83 of the Indian Penal Code and in the Juvenile Justice Act.
As per the maxim, in India, no child below the age of seven years can be prosecuted for commission of any crime, while for children between the age of eight to fourteen years, the prosecution has the burden of proof to prove the offense of the minor. In general, the doctrine reflects the concern that ‘using criminal penalties to punish a child who does not appreciate the wrongfulness of his or her actions lacks moral justification’. The objective behind the maxim involves:
A child who is below the age of seven years does not have sufficient mental capacity to understand the consequences of his action and hence if he commits a criminal act, he may lack the required intention to be prosecuted.
Also, to protect the children from the harshness of punishment that may be inflicted upon them at a very tender age by implementing strict criminal law.
Section 82 of the Indian Penal Code (IPC) is premised on this and provides absolute immunity from criminal legal responsibility to a child below seven years. The said section states that nothing is an offense which is done by a child aged below seven years. Thus, if a child of below seven years is being prosecuted, the same can be stopped by an application under Section 82 of the Indian Penal Code. It is based on the understanding that a child under the age of 7 does not have the intellectual capacity to consider the meaning and implications of his acts and thus lacks the potential to shape the mens rea or the purpose needed.
A child over the age of 10 but under the age of 14 is presumed to lack the capacity to be criminally responsible for his or her acts. The child is described as ‘doli incapax’ (incapable of crime) when their age falls short of ‘the age of discretion’. However, the presumption is rebuttable, meaning that, depending on the individual’s maturity and level of understanding of the ramifications of what they have done, a court may nonetheless determine them to be criminally responsible for their behavior.
Illustration
‘Rajesh’ a 25-year-old, instigates ‘Rohit’ a 5-year-old child, in order to kill ‘Raj’ which causes Raj’s death. Here, the child will not be liable for any crime as he is a doli incapax. However, Rajesh will be held liable for the murder of Raj.
The Supreme Court upheld the conviction and sentence of a 12-year-old boy, who along with his two elder brothers had been initially convicted for murder; which was later converted by the High Court to one for voluntarily causing grievous hurt by dangerous weapons or means. The Supreme Court noted that Section 83 had not been invoked at any stage of the criminal process implying that the onus is on the defense to establish the child’s immaturity.
Kakoo vs. the State of Himachal Pradesh
A 13-year-old boy was convicted for raping a two-year-old girl. To bring down the sentence of the punishment, the counsel on behalf of the accused urged the Court to take into consideration Sections 83 and 84 of the Indian Penal Code that children and adults are not to be treated in a similar manner while hearing a criminal matter.
The Court though convicted the child for the offense of rape, it reduced the sentence of punishment by accepting the aforementioned argument of the counsel on behalf of the accused child. Hence, it can be concluded from the judgment that Section 82 and 83 do not only provide for ‘doli incapax’ but they also act as a signal to the courts while deciding a case that children are not to be treated as equal to adults in criminal cases.
