Farm Laws 2020: Farmers, a community, which gives us food to keep us alive, but the same was always kept under poverty in a planned manner by our policy makers. During the 800 years of slavery, it was only this community who suffered the maximum and always
remained below poverty. They suffered atrocities at the hands of Zamindars, Mahajans
etc. Their generations remained under loan taken by their fathers or grandfathers. With
the fight for independence another fight for land reforms was also fought by our
freedom fighters. Therefore after Independence unlike Britain where land belongs to
the King, we adopted the principle that land belongs to the tiller of the soil. As a result
immediately after getting independence Zamindari Abolition and Land Reforms Acts
and Agriculture Reforms Acts were enacted in all the States, against which a very long
legal fight was also fought by Zamindars and other ruling class but ultimately all these
Acts were upheld by the Hon’ble Supreme Court.

Agriculture Produce Market Committees (APMCs) were also established in all
the States through legislation. The idea behind establishment of APMCs was to provide
better and consolidated market to farmers to sell agriculture produce, to provide
farmers better prices for their agriculture produce, to save them from unnecessary and
arbitrary fee and taxes and to maintain their proper representation in management of
these agriculture markets. But even after 73 years of independence every year we see
lakhs of suicides of farmers due to financial crisis, their education, nutrition at the
minimum level. Most of the villages are far away from basic facilities of life such as
drinking water, medical, roads, electricity, communication or connectivity.

There is a well known slogan of political leaders that “India lives in villages”
just to get their votes but after winning elections they all unite with one goal that is to
keep farmers below poverty in planned manner.

The phenomenon of APMC and MSP (Minimum Support Price) always
remained very useful tools in the hands of policy makers to keep farmers below poverty
line always. When there is concept of MRP (Minimum Retail Price) for all other goods
produced or manufactures in India, why the concept of MSP was evolved for
agriculture produce only is a mystery which we have to understand. Initially MSP was
kept even lower than the cost price of any agriculture produce and farmers were bound
to sell their produce at that price, it is only during last few years MSP is gradually
increased above cost price but the difference of cost price and MSP of any agriculture
produce never touched the level of difference of cost price and MRP of any other
product. Several lakh suicides of farmers every year even after 73 years of
Independence clearly shows that the system of APMC and MSP blatantly failed in
achieving its objects. Therefore a need was being felt from a long time to change this
system.

Critical Analysis of Farm Laws 2020

In last few years several States decontrolled several agricultural products by
amending schedules of their APMC Acts. On 5th June 2020 three Ordinances were
passed by the Modi Government, which were later on substituted by Acts by the
Parliament in September 2020, by overriding State APMCs Acts, which in the wisdom
of the Parliament was a solution to do away with the system of both APMC and MSP
and to eradicate long time poverty of farmers. Salient features of these 3 Farmers Acts
are summarized as under:

1. The Farmers (Empowerment and Production) Agreement on Price
   Assurance and Farm Services Act, 2020:
   This Act empowers farmers to enter into farming agreements including “Trade
   and Commerce Agreements” or “Production Agreements” with any sponsor to produce
   or to sell farmers produce at the price agreed in these agreements with the sponsor and
   to handover delivery of farmers produce to any sponsor at any place outside the mandis
   under control of APMCs notwithstanding anything contained in any State APMC Act.
   Section 5 of this Act mandates that every such agreement shall specifically provide for
   (a) a guaranteed price to be paid for such produce and (b) a clear price reference for
   any additional amount over and above the guaranteed price, including bonus or
   premium to ensure best value to the farmer and such price reference may be linked to
   the prevailing prices in specified APMC yard or electronic trading and transaction
   platform or any other suitable benchmark prices.However section 5 is placed in this Act by the Parliament with intention to
   provide minimum guaranteed price to the farmers for their agriculture produce, which
   shall be fixed in advance in the farming agreement which will be executed at the
   beginning of season and may be for one season to 5 years but according to section 4
   that price shall be subject to quality, grade and standard. However section 5 also
   provide for price reference over and above the guaranteed price and prevailing prices
   in APMC yards.By closely looking into section 4 and 5 of this Act, intention of Parliament
   doesn’t seem to be wrong and an effort was done to make a fair balance between
   farmers and sponsors or future purchasers but since these provisions are not very
   properly worded, it annoyed the entire farmers community of the country because there
   is no guarantee of any MSP in section 5 of this Act.Regarding APMCs intention of the Government is clearly visible to decontrol
   farming produce from clutches of APMCs but still Parliament didn’t do it directly but
   did the same indirectly by snatching area of jurisdiction of APMCs without actually
   destroying or abolishing all APMCs in one go, however they could do so, but the same
   indirect method was not adopted by Parliament in case of MSP and it removed the MSP
   word from the entire Act, which was to be done by the Government at appropriate time
   in phased manner. Thus in my opinion if only few words are added in section 5 (a) and
   section 5 (a) is substituted like below the entire controversy of farmers will be solved
   and the intention of the Government will be fully visible and the entire farmers
   community will again started showing faith in the Government otherwise this little
   mistake may become cancer or epidemic.Present section 5 (a) a guaranteed price to be paid for such produce,
   
   Proposed section 5 (a) a guaranteed price to be paid for such produce,
   which shall not be less than Minimum Support Price fixed by the concerned
   State Governments for such produce irrespective of quality, grade or standard
   of such produce at the time of purchase.Apart from this dispute resolution mechanism is given in this Act, for
   which Central Government also notified Farmers Agreement on Price
   Assurance & Farm Services (Dispute Resolution) Rules 2020 on 21.10.2020
   and also issued Model Farming Agreement, which are available on the website
   of Ministry of Agriculture, Government of India.
2. The Farmers Produce Trade and Commerce (Promotion and Facilitation)
   Act, 2020:This Act was enacted by the Parliament with the following purposes:
   1. To eradicate monopoly of APMCs from farmers produce,
   2. To open market of free trade and commerce in the field of farming
   3. To allow inter State and intra State trade of farming produce without any
      control of State Governments of APMCs
   4. To allow farmers to sell their farmers produce outside the area of APMCs as
      such by making entire country agriculture mandi or trade area
   5. To establish a system of trading of agricultural produce through electronic
      trading and transaction platform like Grofers, Big Bazar etc. and by providing
      mechanism for electronic registration for such trader and penalty for breach of
      any condition of registration by such trader,
   6. To develop a price information and market intelligence system for farmers’
      produce and a framework for dissemination of information relating thereto such
      as share market, gold market etc.

The Essential Commodity (Amendment) Act, 2020:

By this Amendment Act the Parliament inserted sub section (1A) in
section 3 of the Essential Commodities Act, 1955 and no provision of Essential
Commodities Act, 1955 was deleted. Before understanding true nature of this
Amendment Act, first we have to look into section 3(1) of the original Act
which runs as under:

“3. Powers to control production, supply, distribution, etc., of essential
commodities.―(1) If the Central Government is of opinion that it is
necessary or expedient so to do for maintaining or increasing supplies of
any essential commodity or for securing their equitable distribution and
availability at fair prices, 1[or for securing any essential commodity for
the defence of India or the efficient conduct of military operations], it may,
by order, provide for regulating or prohibiting the production, supply and
distribution thereof and trade and commerce therein.”

And newly inserted section 3 (1A) runs as under:
‘(1A) Notwithstanding anything contained in sub-section (1),—
(a) the supply of such foodstuffs, including cereals, pulses, potato, onions, edible
oilseeds and oils, as the Central Government may, by notification in the Official
Gazette, specify, may be regulated only under extraordinary circumstances which may
include war, famine, extraordinary price rise and natural calamity of grave nature;

By comparing both these provisions it is apparent that earlier Central
Government had powers under section 2A, to declare, add or remove any commodity
as essential commodity by notification in consultation with State Governments and
under section 3 Central Government may provide for regulating or prohibiting the
production, supply and distribution of any essential commodity and trade and
commerce therein for maintaining or increasing supplies of such commodity or for
securing their equitable distribution and availability at fair prices, or for securing any
essential commodity for the defence of India or the efficient conduct of military
operations.

However after coming into force newly inserted sub section 1A of section
3 now Central Government itself controlled its own powers by declaring that the supply
of such foodstuffs, including cereals, pulses, potato, onions, edible oilseeds and oils,
as the Central Government may, by notification in the Official Gazette, specify, may
be regulated only under extraordinary circumstances which may include war, famine,
extraordinary price rise and natural calamity of grave nature. The effect of this sub
section will be that supply and distribution of these food stuffs, notified by Central
Government, can be regulated only under extraordinary circumstances.

By Sub section (b) Central Government gave some relaxation to value chain
participants in stock limit of agricultural products, but such relaxation does not apply
in case any order is passed by Government in relation to Public Distribution System or
Targeted Public Distribution System.

Therefore it is clear that in fact this amendment also does not change the powers
of scenario. Earlier also Central Government had powers to add or remove any
commodity from the schedule of essential commodity and now also powers are same.
However certain relaxations are given to corporates involved in trade of farming
products for price hike and stock limit which are essential to give them if we are going
to enter in entirely a new era of contract farming. But these relaxations can again be
taken of by the Government in cases of emergency or for the purpose of Public
Distribution System.

Case Study: Laxmi vs Union of India

Objections and apprehensions against three Farm Laws:

There is a huge countrywide agitation against these new farm laws. The agitators
are challenging these farms laws on roads and in courts on several grounds. I tried to
accumulate their grounds, which in my wisdom are summarized as under:

(i) These laws will bring food stuff beyond reach of poor people and middle class
and will leave the entire market of food stuff in the hands of corporates without
any regulation and control.
(ii) Food prices will be uncontrolled like petrol or diesel and there will remain no
control of Governments over them and food will become a luxury item, which
will bring mass level malnutrition in the country. Governments could not
provide safe drinkable water in the entire country till now and such
uncontrolled price hike of food stuff will result in genocide of poor persons in
systematic manner.
(iii) There will be no control or role of State or Central Government on fixation of
MSP for farmers produce and there is no obligation on corporates to purchase
farmers produce on any minimum price or below MSP.
(iv) The price guaranteed in the agreement is subject to quality and standard, the
corporates may reject the produce after its production in the name of poor
quality and standard.
(v) These laws will struck down all State APMC laws in one stroke.
(vi) In the absence of funds and infrastructure gradually all APMCs will come to an
end and after some time there will remain control of big corporates only over
farming, farmers, food and agriculture industry.
(vii) A parallel uncontrolled and unregulated market will come into force,
(viii) There is enough scope in these laws for exploitation of poor and illiterate
farmers and to flourish corporate greed of multinational companies because
these big companies will always be in unequal bargaining position.
(ix) Parliament has no legislative competence to enact these farm laws,
(x) These laws are violative of fundamental rights guaranteed under Article 14 and
23 of the Constitution
(xi) These laws are violative of Article 39 (C), 40 and 243 G of the Constitution,
(xii) These laws are encroachment of Parliament on State subjects given in List II of
7th Schedule and as such against Federal Structure, which is a basic structure of
Constitution.

मोहरी बीबी बनाम धर्मोदास घोष

Analysis of objections and apprehensions:

As far as objections from (i) to (viii) are concerned they are mere apprehensions
of agitators with the presumption that every farmer in the country is illiterate and below
poverty line and he doesn’t know whether he is going to enter in a beneficial contract
or not. Here I would like to say that today we are not in 1950s but it is 2021 and please
don’t underestimate knowledge of farmers of this country.

There is enough education and literacy among farmers, their children are getting higher education, they are controlling maximum numbers of political posts all over country, internet and communication brought knowledge of the world in the mobile of everyone and in every family, all farmers have their bank accounts and they all can very well understand pros and cons of farming agreements, therefore to say that they are in unequal bargaining
position is not correct in present days situation. It is only beginning of a new era which
will end long lasting monopoly of APMCs throughout the country and will allow
farmers to sell their products outside mandi also at higher prices. It will always be open
for the farmers to sell their product in mandis if they will get better prices there. We
should be positive towards better future and should not forget that the law is always
dynamic and can be changed according to circumstances.

Keshavananda Bharti vs State of Kerala 1973

As far as objections no. (ix) to (xii) are concerned, these are legal contentions
and we have to analyse these objections under Constitutional perspective and the law
settled by the Hon’ble Supreme Court through several judgments. It is vell settled law
that any legislation can be challenged only on two grounds (i) it lacks legislative
competence or (ii) it is in violation of any fundamental right guaranteed under Chapter
III of the Constitution.

To determine legislative competence of Parliament these farm laws we have to
read Article 243 G, 246, 248, 249 and 250 of the Constitution along with certain entries
of List I, II and III of the 7th Schedule of the Constitution. It is well established that
Parliament is competent to enact laws on any subject given in List I and III and States
have exclusive rights to enact laws on the subjects given in any entry in List II and also
on any subject given in List III subject to the extent of inconsistency with any law made
by Parliament.

However according to Article 249 and 250 Parliament can also enact
laws on subjects of State list in case of emergency or in case any resolution is passed
by Council of States to that extent by two third majority of members present and voting.
For the sake of knowledge certain entries of these three lists may be referred, from
where sources of these laws can be drawn:

List I—Union List – Entries 42, 82, 92A and 92B
List II—State List – Entries 5, 6, 14, 15, 16, 17, 18, 21, 26, 27, 28, 30, 45, 46, 47, 48
and 49
List III—Concurrent List – Entries 6, 7, 18, 33 and 34

Conclusion:

Since the validity of these laws is under challenge in the Hon’ble Supreme Court
and different high Courts, therefore I am not going in any deep study on that issue, and
it is for the Hon’ble Supreme Court to decide as to whether Parliament was competent
to enact these laws or not and under which of these entries. However to sum up in my
opinion if only one amendment is done in section 5 (a) of the Farmers (Empowerment
and Production) Agreement on Price Assurance and Farm Services Act, 2020, as
mentioned above, the Government can settle down the present controversy and can
leave the constitutional validity to be decided by the Courts. Otherwise all these three
farms laws are cumulatively make a very good package to bring the farmers and
farming in this country in new era to compete with international standards.

The concept of human rights has a respectable pedigree. It can be traced to the Natural Law of the seventeenth century where the philosophers such as Locke and Rousseau philosophized over such inherent human rights and sought to preserve these rights by propounding the theory of ‘social compact’. The concept of human rights represents an attempt to protect the individual from oppression and injustice. The idea of guaranteeing certain freedoms is to ensure that a person will have a minimum guaranteed freedom. Thus, under the International Declaration of Human Rights which was introduced in 1948. The Freedom of Speech and Expression is also recognized in International Covenant on Civil and Political Rights (ICCPR) of International Human Rights.

The framers of the US constitution in 1787 were the first to give concrete shape to the concept of human rights by putting these rights into the constitution and making them justiciable and enforceable through the instrumentality of the courts. During the British regime in India, human rights were widely violated by the rulers. Therefore, the framers of the Constitution, had a very positive attitude towards these rights. Accordingly, human rights were incorporated in the Constitution under the title of ‘Fundamental Rights’ in Part III under Articles 12 to 35. In his closing address to the Constituent Assembly, Dr B.R. Ambedkar emphasized that the principles of liberty, equality and fraternity were not to be treated as separate entities but as a ‘trinity’.

The preamble declares that the Constitution of India has been adopted by the people to promote justice, liberty, equality, and fraternity thus the constitutional provisions amongst the fundamental rights also protect these values. The entrenched fundamental rights have a dual aspect. Entrenchment means that the guaranteed rights cannot be taken away or infringed by an ordinary law and curtailing or infringing such law would be declared to be unconstitutional. The Supreme Court acts as the protector, interpreter and guardian of these rights and also seeks to integrate the directive principles with fundamental rights.

Hence we deduce from these facts that Fundamental rights are invincible. Articles 19, 20, 21A and 22 consist of provisions concerning the right to freedom. Six freedoms are granted to any citizen in the country, as provided in Article 19. They are:

• Freedom of speech and expression
• Freedom to assemble peacefully without arms
• Freedom to form associations or unions
• Freedom to move freely throughout India
• Freedom to reside and settle in any part of India
• Freedom to practice any profession or to carry on business, occupation or trade

CONSTITUTIONAL PROVISIONS

The Indian Constitution provides for a series of fundamental rights for the citizen of India. The freedom of speech and expression enshrined under Article 19(1)(a) of the Constitution is one such privilege.

Freedom of speech & expression refers to the ability of an individual or group of individuals to express their beliefs, thoughts, ideas, and emotions about different issues free from government censorship. It is essential to individual liberty. The intent of the drafters of the Constitution was that they believed in a free society. The people must be permitted to criticize government and lobby for change. The limitations on free speech preclude speech that is harmful to others, threatening, or generally repulsive and reviled.  But the concept of ‘free expression’ was restrained as it cannot be equated or confused with a license to make accusations against the judiciary that are unfounded and are irresponsible. The right to speech and expression is not an absolute right, and the State can enforce reasonable restrictions under Article 19(2) of the Constitution.

Also Read: Rights of undertrial prisoners in India

THE LANDMARK JUDGEMENTS

1. Freedom of Press

Freedom of the press is essential to freedom of expression, which forms the  backbone of political freedom and genuine functioning of democracy. In the case of Romesh Thappar v. State of Madras, the court affirmed that the enforcement of pre-censorship on a journal constituted an infringement on the freedom of the press, which is an essential part of Article 19(1)(a). The judgment added that free political dialogue is necessary if a democratic government is to work properly
In Indian Express Newspapers v. Union of India, The Court confirmed that freedom of the press plays a very important role for the proper functioning of democracy, deriving its roots from Article 19(1)(a) and that it is the duty of the courts to uphold freedom of the press.
In Benet Coleman and Co. vs. Union of India, according to the Supreme Court of India, the constraint of the permissible number of pages in the newspaper was found to be in violation of Article 19(1)(a) and is not a reasonable restriction under Article 19(2).
In the case of Prabhu Dutt vs. Union of India, it was claimed that the right to know about the news and details related to government’s administration is included in the freedom of press.

2. Right to Broadcast

By the introduction of technology, Courts have acknowledged the modern aspects of freedom of speech and expression. That is, the right to broadcast and advertise.  In Odyssey Communications (P) Ltd. v. Lokvidayan Sanghatana, the Hon’ble Supreme Court ruled that the privilege of a person to display films on the Doordarshan- State Channel is part of the fundamental right provided by Article 19(1)(a). In this case, the petitioners challenged the displaying of a serial named ‘Honi Anhonion’ in Doordarshan on the basis that it prompted the audience to believe in superstition and blind faith. The claim was rejected as the plaintiff became unsuccessful in showing evidence of detriment caused to the public.

3. Right to Information

After the enactment of the Right to Information Act 2005, in the case of Secretary-General, Supreme Court of India v. Subhash Chandra Agarwal, the court reiterated that, according to Article 19(1)(a), the right to information is not a legislation but a constitutional guarantee.

The Supreme Court in Union of India v. Assn. for Democratic Reforms stated that the freedom to transmit and acquire information pursuant to Article 19(1)(a) is necessary. (It is to guarantee that people are aware and that one sided information or misinformation will not render democracy a farce.)
In the case of Dinesh Trivedi, M.P. and Ors. v. Union of India, The Supreme Court affirmed that, in a modern democratic society governed by the Constitution, it is obvious that citizens are entitled to know about the affairs of the government which they elect.

4. Right to Criticize

In the case of S. Rangarajan v. P. Jagjivan Ram, it was affirmed that it is appropriate to form and convey an opinion in a manner which does not cause defamation to the other individual to whom such critique is addressed and is secured under the freedom of speech and expression. The decision added that democracy calls for open discussion and policy criticism.

5. Right to Expression beyond National Boundaries

In the case of Maneka Gandhi v. Union of India, the Supreme Court confirmed that freedom of speech and expression was not limited by geographical limitations or boundaries and claimed that Article 19(1)(a) encompasses both the right to speak and the freedom to express in India and also in abroad.

6. Right to Refuse to Speak or Right to Silence

In the case of Bijoe Emmanuel v. State of Kerala, the school dismissed three students for their denial to sing the national anthem. Yet when the national anthem was playing, the children took a stand in respect. The legality of the students ‘expulsion was questioned at the Kerala High Court, and they confirmed the student’s dismissal on the basis that singing the national anthem was their fundamental duty. Yet, on an appeal brought before the Supreme Court against the order of the Kerala High Court, the Supreme Court held that the students had committed no offence under the Prevention of Insults to the National Honour Act of 1971 and further stated that the dismissal of school children for not singing the national anthem created a violation of their right to freedom of expression.

• शेडवेल बनाम शेडवेल
• मोहरी बीबी बनाम धर्मोदास घोष

FREEDOM OF SPEECH & EXPRESSION AND CONTEMPT OF COURT

Contempt of court, often referred to simply as ‘contempt’, is the offence of being disobedient to or disrespectful toward a court of law and its officers in the form of behaviour that opposes or defies the authority, justice and dignity of the court. Our Constitutional scheme is premised on the concept of Rule of law. In India, the basic rule of governance is that no one is above the law. For this the Constitution has assigned a special task to the judiciary in the country as it is only through the courts that the Rule of law unfolds its contents and establishes its concept.

Thus, for the judiciary to perform its duties and function effectively and true to the spirit with which it is sacredly entrusted, the dignity and authority of the courts have to be respected and protected at all costs. After more than half a century of Independence, the judiciary in the country is under a constant threat and being endangered from within and without. Hence, the need of the hour is to restore confidence amongst the peope for the independence of the judiciary. The only weapon of protecting itself from the onslaught to the institution is through the process of contempt of court left in the armoury of the judicial repository which can penalize anyone.

Also Read: Rights of undertrial prisoners in India

THE LAWS ON CONTEMPT OF COURT:

There is a very thin line between Freedom of Expression and the Contempt of Court. The Contempt of Courts Act, 1971 was promulgated in this country specifically to uplift the magnanimity of the court which is often put in conflict with the freedom of expression enshrined in our constitution and often revered to be most important provision to ensure democratic values.

Under the Act, the action for contempt is taken by only two courts, that is, the Supreme Court under Article 129 or the High Court under Article 215 of the Constitution. The procedure is prescribed under Section 15 of the Act. The Supreme Court has with the approval of the President, framed, in the exercise of its powers under Section 23 of the Act read with Article 145 of the Constitution rules to regulate proceedings for contempt of the Court. Besides, the court may take action which could be suo motu or on a petition made by Attorney General, or Solicitor General or (c) on a petition made by any person, and in the case of criminal contempt with the consent in writing of the Attorney General or the Solicitor General.

THE CONFLICT AND THE CONTROVERSY

The Constitution Bench of the Hon’ble Supreme Court in Supreme Court Bar Association v. Union of India & Anr observed that ‘the contempt of court jurisdiction is not exercised to protect the dignity of an individual judge, but to protect the administration of justice from being maligned’.

One of the earliest occasions when Supreme Court had to deal with criminal contempt of court was the case of Brahma Prakash Sharma & Ors. Vs State of U.P. Their Lordships pointed out that there are primarily two considerations in such matters. Thus, the Constitution Bench laid down the ratio which says:

‘If, however, the publication of the disparaging statement is calculated to interfere with the due course of justice or proper administration of law by such court, it can be punished summarily as contempt. One is a wrong done to the judge personally while the other is a wrong done to the public. It will be an injury to the public if it tends to create an apprehension in the minds of the people regarding the integrity, ability, or fairness of the judge or to deter actual and prospective litigants from placing complete reliance upon the court’s administration of justice, or if it is likely to cause embarrassment in the mind of the judge himself in the discharge of his duties. It is well established that it is not necessary to prove affirmatively that there has been an actual interference with the administration of justice by reason of such a defamatory statement; it is enough if it is likely, or tends in any way, to interfere with the proper administration of law.’

TYPES OF CONTEMPT

Civil Contempt

Section 2(b) of the Contempt of Courts Act of 1971 defines civil contempt as a wilful disobedience to any judgment, decree, direction, order, writ or other processes of a court or wilful breach of an undertaking given to a court.

Criminal Contempt

Section 2(c) of the Contempt of Courts Act of 1971 defines criminal contempt as the publication whether by words, spoken or written, or by signs, or by visible representation, or otherwise of any matter or the doing of any other act whatsoever which:
(i) Scandalises or tends to scandalize, or lowers or tends to lower the authority of, any court, or
(ii) Prejudices, or interferes or tends to interfere with the due course of any judicial proceeding, or
(iii) Interferes or tends to interfere with, or obstructs or tends to obstruct, the administration of justice in any other manner.

PUNISHMENT AND SENTENCING

Both civil and criminal contempt share the same punishment under the Contempt of Courts Act 1971. The Act allows for a maximum term of imprisonment for six months, and this can be supplemented with a fine up to ₹2000. The Contempt of Courts Act 1971 also specifically allows courts to forgo the punishment if an apology is made to the court, and may use their discretion to determine whether the apology has been sufficient.

Few Cases connected with Contempt of Court in India

1. In Duda P.N. v. Shivshankar, P., the Supreme Court observed that the contempt jurisdiction should not be used by Judges to uphold their own dignity. In the free market places of ideas, criticism about the judicial system or the Judges should be welcomed, so long as criticisms do not impair or hamper the ‘administration of justice’.
2. In Auto Shankar’s Case, Jeevan Reddy J, invoked the famous ‘Sullivan doctrine’ that public persons must be open to stringent comments and accusations as long as made with bonafide diligence, even if untrue.
3. In Arundhati Roy case, the Supreme Court observed that a fair criticism of the conduct of a Judge, the institution of the judiciary and its functioning may not amount to contempt if made in good faith and in public interest.
4. In Indirect Tax practitioners’ Association v. R.K. Jain, S.C. observed that the Court may now permit truth as a defence if two things are satisfied, viz., (i) it is in public interest and (ii) the request for invoking the said defence is bona fide. (S.13, Contempt of Courts Act,1971).
5. In 2012, the Calcutta High Court bench of Justice Arun Mishra and Joymala Bagchi decided the contempt case against the Chief Minister of West Bengal Mamta Banerjee on her controversial speech wherein she alleged that corruption had made inroads into the Judiciary. Banerjee was ultimately absolved of proceedings by the High Court. The Bench asserted that power of contempt be exercised cautiously, wisely and with circumspection. Recurrent or haphazard use of this power in anger, haste or annoyance would not help to sustain the dignity of the courts instead may affect it adversely.

THE PRASHANT BHUSHAN CASE:

The most recent contempt of court case in India is the Prashant Bhushan contempt case wherein the Hon’ble Supreme Court has initiated suo moto contempt proceedings against Advocate on Record (AOR), Shri Prashant Bhushan for his tweets against current Chief Justice of India, Shri S.A. Bobde; his 2009 interview with Tehelka magazine wherein he questioned the integrity of a few past Chief Justices of India and some of his other recent tweets where he has questioned the long absence or limited functioning of the courts during the initial days of the lockdown period.

However, when the contempt proceedings were initiated Mr Bhushan was quick to withdraw his remarks with regard to his tweet. He even offered an apology for this tweet and clarified that he meant no disrespect to the office of the Chief Justice of India. However, Mr. Bhushan vehemently refused to apologise for either for his Tehelka magazine interview which dates back to 2009 or for any of his other tweets. Mr Bhushan has in his reply to the contempt proceedings stated that he meant no disrespect to the offices of the Hon’ble Judges in the interview and the tweets.

He was merely offering constructive criticism and hence tendering an apology whether conditional or unconditional would not be sincere. The suo moto contempt proceedings against Prashant Bhushan were initiated on 21st July 2020 and on 14th August 2020, the constitutional bench found Mr. Bhushan guilty of the offence of contempt of court. The Supreme Court in its order fined him Re 1 for contempt of court and gave other options to him such as three months in jail or a three-year ban on practising in the Supreme Court.

A similar case was observed in the post-emergency era of the year 1977-78 when two editors – Shamlal of The Times of India and S. Mulgaokar of The Indian Express were charged with contempt of court for their articles in their respective newspapers where they questioned the bench which decided the case of A.D.M. Jabalpur v Shivakant Shukla. The articles penned by Shamlal and Mulgaokar were published when Justice M H Beg was appointed as the Chief Justice of India and both articles criticized the above-mentioned judgement and questioned the integrity of the judges.

One of the articles even went on to state that Justice Chandrachud and Justice P N Bhagawati should not be considered for the position of Chief Justice of India despite both of them being next in line respectively in order of seniority. Two separate cases of contempt were instituted suo-moto against both the editors. Both editors, however, chose to contest their matters and the constitutional bench eventually held that neither of them acted in contempt of court. This shows the importance that was given to the freedom of speech and expression of the editors’ and the freedom of the press as well.

CRIMINAL CONTEMPT ACROSS DIFFERENT JURISDICTIONS: A COMPARATIVE ANALYSIS

In the United Kingdom, the offence of scandalizing the courts was abolished in 2013 after a Law Commission report. This is interesting to note because the Indian law of Contempt of Court is derived from the Common Law of Britain. In the famous Spycatcher case, an English newspaper published a caricature of three judges and captioned it, ‘You Old Fools’. Lord Templeman denied initiation of contempt proceedings and wittingly replied that he was indeed an old man but whether he was a fool was a matter of public perception, although he did not think so.

The United States of America currently has watered down the contempt law by numerous judgements which affirm that the dignity of the courts cannot be established by silencing public opinion or by restricting the free discussions about the Court.

Contempt powers can be only used if there is a clear imminent and present danger to the disposal of a case. In Canada also, the courts are open to criticism unless there is an imminent danger to the administration of justice.

The Amendment to the Contempt of Courts Act, 1971 in 2006

The law of contempt in India was rectified only in 2006 by an amendment to the Contempt of Courts Act. The 2006 amendment to the Contempt of Courts Act, 1971 clarifies that the Court may impose punishment for contempt only when it is satisfied that substantially interferes, or tends to substantially interfere with the due course of justice.

THE NEW VISTAS OF FREEDOM OF EXPRESSION IN INDIA

The Supreme Court of India has placed freedom of speech and expression on a higher pedestal compared to the other freedoms enshrined in the Constitution. The reason is because, according to the Supreme Court, freedom of speech and expression is the most precious of all the freedoms guaranteed by our Constitution. In recent times new dimensions have emerged which led to a number of Acts and measures that further expanded the scope of the freedom of expression in India.

• The Constitution of India

The freedom of speech includes within it’s purview the freedom ‘not to speak’. While the Constitution under Article 19(1) (a) guarantees right to freedom of speech, the right not to speak is mentioned under Article 20(3), which says that ‘no person accused of any offence shall be compelled to be a witness against himself’. Hence the right not to speak vested in an accused criminal is a ‘jural opposite’ of the right to speak. But an accused has the liberty to speak and his speech can be used in evidence against him. The State has no right to compel him to speak. The Constitution of India has raised the rule against self-incrimination to the status of a Constitutional provision.

• The Right to Information Act

The Right to Information derives from the democratic framework established by the Constitution and rests on the basic premise that since the government is for the people it should be open and accountable and should have nothing to conceal from the people, it purports to represent. In State of UP v. Raj Naraian, Mathew J., had pointed out that ‘the people of this country have a right to know every public act, everything that is done in a public way by the public functionaries. They are entitled to know the particulars of every public transaction in all its bearing.’ In recent times, the RTI has brought about a radical transformation in the awareness about the rights of a citizen and manner of governance. By far we can say that this is the most citizen-friendly legislation post-independence.

• Election Commission on Social Media

Long back a report circulated in media that the Election Commission is going to enforce the Model Code of Conduct on social media. Thus leading to an assumption that the media will be stifled and the freedom of speech and expression is under threat. But it was an unfounded fear. The Election Commission is a protagonist of the people’s right to information and free expression. If it comes with any order on social media, it can only be with reference to political parties and candidates, and that too in the context of expenditure and objectionable content that violates the Model Code of Conduct.

The law requires that every rupee spent on the campaign must be accounted for. This includes the expenditure on different media where if a candidate spends money on it; he is by law duty bound to show it in the mandatory expenditure statements. Some of the content is often so explosive that it can set the country afire. Therefore, the steps taken prevent these events and certainly do not amount to interference with the freedom of expression.

• Ban on Opinion Polls or the Exit Polls

In a democracy, the right to cast a vote is as important as to get information because it enables the citizens to make an informed choice. It is because of the right to information that the candidates are bound to declare their assets. The professed justification for imposing a ban on opinion poll and exit polls is that they would adversely affect electoral prospects of some political parties or candidates or that they may have the effect of unduly influencing the minds of the electors. In 1999, Election Commission issued guidelines to ban publication and telecast of result of opinion polls which was withdrawn by the Election Commission as a result of the opposition by the supporters of freedom of speech and expression.

• Media Trial

The tension between the courts and the media revolves around two aspects. The first is that there should be no ‘trial by media’ while the second is that it is not for the press or anyone else to ‘prejudge’ a case. Media is the only means for public to access the information about justice delivery. The Supreme Court has affirmed that freedom of expression is not restricted to expression of thoughts and ideas and includes the right to receive information and ideas of all kinds from different sources.

In Naresh Sridhar Mirajkar & other V. State of Maharashtra & another, the Supreme Court held that the open justice is not an absolute rule and the court may, in exercise of its inherent powers, prohibit the publication of reports. That High Courts have the inherent power to restrain the press from reporting where administration of justice so demanded.

• None of the Above (NOTA)

Recently, the Supreme Court has recognized the right to a negative vote though it will not affect the result) as a part of freedom of expression. The Supreme Court has asserted that just as people have the right to express their preference for a candidate, they also have a right to register a negative opinion. This can be exercised through an extra button on the EVM which says ‘None of the above’ (NOTA). The apex court has directed the Election Commission to introduce the NOTA option on EVMs and ballot papers.

The Supreme Court says, not allowing a person to cast vote negatively defeats the essence of freedom of expression and the right ensured in Article 21 of the Constitution, that is, the right to liberty. This decision came as a the result of a writ petition filed by PUCL in 2004, under Article 32 of the Constitution and questioned the constitutional validity of the conduct of Election Rules.

• Prohibition on FM Radio to Telecast News

Prior to the policy guidelines for phase III of the expansion plan for FM and community radio in 2011, the FM and community radio stations were not permitted to air any programme relating to these areas. In response to a Public Interest Litigation (PIL), the Apex Court asked the government to explain why it believes that private radios should not run their own news programme though private television channels and print media can. The rules in force narrowly define ‘what news is and what is not’.

The weather, traffic, counselling, coverage of cultural events, examinations, careers and such are defined as ‘information’, which is exempt from curbs. Indeed, the community radios can be operated cheaply and if liberalized, they would proliferate, but the government should not take them as threats. Rather they can be partners in development, spreading education and news locally.

• Internet Regulation and Freedom of Expression

The Internet communication crosses national territorial boundaries. Their global character is one of their principal characters, so much so that an effective regulation by state authorities is impossible. Attempts by one country to regulate the content of internet may affect the free speech rights of others. The different decisions of courts of different countries may also cause conflict. A number of measures were taken by the government to regulate the content on internet.

The Government of India asked the US to ensure that India-specific objectionable content be removed from the social media sites. The government also wanted these service providers to set up servers in India in order to regulate the content locally. However, such attempts have failed because of failure to fix liability, jurisdictional issues, and clashes in public policies among different nations, anonymity on the web etc. Brazil’s new internet law is a good step in this context. The new law enshrines the principle of ‘net neutrality’, which holds that network operators must treat all traffic equally. It also ensures that 100 million Brazilian internet users enjoy online privacy.

• Right to Privacy and Freedom of Expression

The right to one’s privacy should always be respected and must be restricted for reasonable cause. In India, there is no such national privacy policy. Although the concept of privacy is not explicitly listed as a fundamental right it is an essential component of Articles 19 and 21. Despite debates on an inadequate pending Privacy Bill, 2011, India does not have legislation examining the right to privacy. The Supreme Court has recognised a qualified right to privacy. The Indian Supreme Court gives constitutional protection to privacy by including it in Article 21which says that no citizen can be denied his life and liberty except by law and the right to privacy has been interpreted to be part of that.

There are certain restrictive powers available to the government like surveillance powers created by the Indian Telegraph Act, 1885. Both the Central and State governments have power to intercept messages if their content compromises public safety. Section 80 of the Information Technology Act, 2000 gives police and senior Government Officials the power to enter any public place and search and arrest without warrant any person found therein who is reasonably suspected or having committed or about to commit an offence under this Act.

• Copyright Law and Freedom of Expression

There are certain forms of possible conflict between freedoms of expression and copyright those have been previously overlooked. The reproduction of copyrighted work could be required for freedom of expression because of the importance copyrighted work has for citizens in a specific cultural space.
Intellectual property rights protect application of ideas and information that are of commercial value. It may be argued that copyright is a fundamental right under Article 19 (1) of the Constitution.

• International Measures Taken to Overcome the Challenges

Freedom of expression is guaranteed by international treaties but there is a significant difference among countries in their view of the meaning of ‘free expression’ and how it should be protected. The protection for free expression is given in a number of organic documents such as the United Nations’ International Covenant on Civil and Political Rights (ICCPR), the European Convention for Human Rights (ECHR), the American International Covenant on Civil and Political Rights (ICCPR), the European Convention for Human Rights (ECHR), the American Convention on Human Rights (ACHR), and the African Charter on Human and Peoples’ Rights (ACHPR).

According to the basic structure the individuals are guaranteed the right to receive information and freedom of expression through media of their choice. This right, however, is impeded by permissible restrictions to protect national security, individual privacy and reputation, the impartiality of courts, and the like.  The current internet governance is neither democratic nor inclusive as the framework of Internet Governance (IG) is imperfect, especially with the United State’s strong influence and legal proximity to IG-related mechanisms.

European Union has rightly pointed out that the Internet Corporation for Assigned Names and Numbers (ICANN) is a good place to start, decentralization and renegotiating ICANN’s cosy relationship with the United States are some of the steps that need to be undertaken. Countries such as Russia and China, and some States in the Middle East, are attempting to increase the UN’s power to regulate the internet through the International Telecommunication Union (ITU).

CONCLUSION

Free speech is a sine qua non for a democracy. Therefore, the right of the citizens to free speech and expression under Article 19(1) (a) should be treated as primary and the power of contempt should be treated as subordinate. All citizens of India are guaranteed the right to freedom of speech and expression, contempt of court is indeed one of the reasonable restrictions that can act as a rider on this right. Besides, the right to freedom of speech and expression is also subject to certain reasonable restrictions such as defamation, decency and morality, public order and incitement of offences.

One could argue that the ambit of the reasonable restrictions enshrined between Clauses 2 to 6 of Article 19 of the Constitution of India are so wide that they restrict the very rights that clause 1 of Article 19 enshrines. However, the reasonable restrictions were included for maintaining the balance. The framers of the constitution knew that if they were to enshrine absolute rights on Indian citizens then there were chances of dire circumstances which might have affected and lead to the failure of constitutional machinery. Hence, the Constitution of India is rightly termed as a living document that has survived for over seven decades despite several amendments being made and various foiled attempts to dilute the spirit of the Indian Constitution.

The incidents of sexual violence are not a novel concept rather it has prevailed in the society forever. If we study the history we find that the issues of sexual assaults have been recorded and documented for long. From the writings of ancient Greece to the Bible to the letters of early explorers sexual violence has long been a brutal part of the human story. Some assaults have even changed the course of history. ‘Women are erased,’ says Sharon Block, professor of history at University of California, Irvine and the author of Colonial Complexions: Race and Bodies in Eighteenth-Century America.

The historic rapes that ‘mattered’ are the only ones where men saw themselves damaged. Wars, especially, have been linked to conspicuous sexual assaults from mass rape committed by Soviet soldiers as they advanced into Germany during World War II to sexual violence amid the genocides in Rwanda in 1995. In fact, the ubiquity of sexual assault in wars makes those crimes a category unto themselves.

WHAT IS RAPE?

Rape is a stigma upon the woman or the victim that exists with her in the society for a long time. The dictionary meaning of the word rape is ‘the ravishing or violation of a woman’. Rape is one of the most heinous forms of sexual harassment against women which not only damages the woman physically but also drains her mentally. She is treated as an accomplice in the society which values chastity as the most important attributes of womanhood and does not hesitate to test it by subjecting the woman to the ordeal of fire without causing a ripple amongst the onlookers.

It’s a sad reality of our society which is patriarchal in nature where the victim is forced to suffer. She is crippled for life and has no privacy. She is held responsible for her fate in one way or the other. She has to relive the tragedy that she went through in the court rooms if she gathers enough courage to prove her innocence. Thus it is very unfortunate that it is the victim and not the accused of rape that carries the social stigma of life.

THE PSYCHOLOGY BEHIND RAPE

Being raped is one of the most distressing, horrendous and demeaning experiences anyone could have. It almost always leaves the victim with feelings of self-loathing, self-blame and rage, and can also cause post-traumatic syndrome disorder (PTSD).
The motives behind rape vary and are difficult to quantify.

However, studies show that rapists have some common characteristics:

• a lack of empathy
• narcissism
• feelings of hostility towards women

Toxic masculinity

Sherry Hamby  a research professor of psychology at the University of the South in the US State of Tennessee, said ‘sexual assault is not about sexual gratification or sexual interest, but more about dominating people.’

It is necessary to first establish that rape is not a behavioral or mental disorder, but a criminal offence. Although some rapists may have a psychological disorder, there is no such disorder that compels people to rape.

Hostility Towards Women 

Rapists often see women as sex objects who are there to fulfill men’s sexual needs. They tend to hold false beliefs, often described as rape myths.  For instance, a rapist can believe that if a woman says no, she really means yes, and that she is just playing around or challenging him.

Sherry Hamby further added that in some cultures, patriarchy and dominance are expressed through a kind of “dehumanization” in which women are seen as inferior beings to men. This makes it much easier for women to become the targets of aggression.

THE DISTURBING STATISTICS

On an average, 88 rapes take place every day in India, according to the National Crime Records Bureau (NCRB) data for 2019. However, the conviction rate is as low as 27.8%. This means, out of 100 accused, only 28 gets convicted. The NCRB data reveals that the rate of crimes against women increased from 58.8 in 2018 to 62.4 in 2019. There were 32,033 incidents of rape and the crime rate for rape was the highest in Rajasthan, where 5,997 rapes were reported in 2019.

According to the NCRB report, maximum rape cases are reported from Rajasthan and Uttar Pradesh. Nearly 6,000 rape cases were reported in Rajasthan, followed by 3,065 cases in Uttar Pradesh in 2019 followed by Madhya Pradesh at 2,485, Maharashtra 2,299 and Kerala 2,023. Delhi reported 1,253 rape cases in 2019. Uttar Pradesh and Rajasthan have seen a rise in sexual violence as a tool of oppression against Dalit communities. Of all the reported rape cases in Uttar Pradesh, 18 per cent victims are Dalit women, almost double of that in Rajasthan (9 per cent).

One of the common reasons why criminals don’t get punished is the poor police investigation. Reasons such as hostility of witnesses and complainants and the familial pressure on the victim also play a big role. The NCRB figures assume significance as it also shows that in many cases, victims don’t approach the police complaining about the rape or sexual assault. Expressing concern over the low conviction rate, even the Supreme Court had observed that 90% of rape cases end in acquittal. 

The rape vulnerability of a girl or woman has increased up to 44 per cent in the last 10 years, the National Crime Records Bureau (NCRB) data shows. According to the NCRB data, during the period 2010-2019, a total of 3,13,289 cases were reported across India.

CASTE DYNAMICS AND SEXUAL VIOLENCE IN INDIA

Caste dynamics permeate every aspect of life across vast swathes of India, particularly in the South Asian nation’s rural areas. When it comes to sexual violence, a potent mix of caste-driven rivalries, and sometimes religion-based as well, have been the prime motivational reasons. The Bhanwari Devi case in the State of Rajasthan, Khairlanji Lalasa Devi and Delta Meghawal cases are all examples of atrocities on women who belonged to Dalit community and lower castes.

According to Kroeber (1930), castes are a special form of social classes, their customs and laws are rigid and separated from one another. However, social movements against caste hegemony in the colonial and post-colonial periods have immensely contributed to the restructuring of caste equations. In addition, constitutional safeguards stand in contradiction to the conventional norms and rules of the caste system.

With the introduction of constitutional modernity and democratic spaces, the struggle against caste inequality changed in many ways as marginalised communities like the Dalits and the lower castes were given equal citizenship rights. However, the assertion of rights from Dalit and lower caste communities often leads to a backlash from the dominant castes and upper castes in the form of violence and atrocities.

The Indian constitution challenges this caste impunity through certain laws and acts which protect the marginalised and vulnerable from the atrocities committed against them, for instance, the Scheduled Caste and Scheduled Tribe Protection against Atrocity Act to safeguard the scheduled castes, previously untouchables, and the scheduled tribes against atrocities by any individuals belonging to non-scheduled castes and nonscheduled tribes. Although, the POA Act enlists sexual violence against Dalit women by uppercaste/dominant caste men as an atrocity, the discourse on the role of caste in sexual violence has been largely missing from the upper-caste women’s movement, academia, and civil society.

Before the coming into existence of the Vishakha guidelines, there were absolutely no laws dealing specifically with sexual harassment. It was either incorporated under Section 354 or Section 509 of the Indian Penal Code. Sexual harassment of a woman by words, gestures or stalking finds recognition in Section 509 which prescribes punishment for one year and is a cognizable and bailable offence. It thus hardly had any impact. However in the case of Vishakha and Others v. State of Rajasthan the court for the first time defined sexual harassment as any unwelcome sexually determined behavior which could result in humiliation to the victim or adversely affect her health and safety.

This concept had been borrowed from the United Nations Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW),1979 which India has both signed and ratified. The Supreme Court laid down certain guidelines for the prevention and punishment of sexual harassment at the workplace to ensure gender equality of working women. Nearly 16 years after the court came up with these guidelines the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Bill, 2012 was passed by both the houses of the Parliament and received Presidential assent on 22nd April, 2013.

THE LAWS ON RAPE

In India rape is a criminal offence. Section 375 and Section 376 of the Indian Penal Code, 1860 define the offence of rape and also prescribe punishment for the offenders. There were no changes made in the law since their inception in 1860 until 1983 amendments following huge protests in the wake of the controversial Supreme Court judgement in the Mathura rape case.

Section 375 of the Indian Penal Code, 1860 gives the legal definition of the term rape. A man is said to commit ‘rape’ if he—

• First- Against her will.
• Secondly- Without her consent.
• Thirdly- With her consent, when her consent has been obtained by putting her or any person in whom she is interested in fear of death or of hurt.
• Fourthly- With her consent, when the man knows that he is not her husband, and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married.
• Fifthly – With her consent, when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent.
• Sixthly – With or without her consent, when she is under eighteen years of age.
• Seventhly- When she is unable to communicate consent.
  
  There are two exceptions to the definition of rape. First, it does not include any medical procedure or intervention. Secondly, it does not constitute rape even if it is a forced sexual intercourse by a husband with his wife; the wife being not less than 15 years of age does not amount to rape.

Section 376 provides for the punishment of rape wherein who ever commits the offence of rape shall be punished either with imprisonment for a period of seven years which may be for life or for a term which may extend to ten years and shall also be liable to a fine.
Consent is the determining factor for rape. The absence of consent distinguishes rape from ordinary consensual sexual intercourse. Initially the judiciary laid emphasis on the use of force and physical injuries on the body of the victim to prove that there had been rape. Also the passive submission would not constitute absence of consent.

Under these circumstances it became extremely difficult for a woman to prove that she did not consent. Even the forensic evidence couln’t be produced in all cases unless the woman is medically examined within 24 hours of the incident; it becomes difficult to prove rape. Therefore, it impacted the victims negatively especially in those cases where consent was obtained by means of misrepresentation or fraud.

This situation changed following the infamous judgement of the Supreme Court in Tukaram v. State of Maharashtra which acted as a catalyst for reform in rape laws. In the above case, Mathura a 16 year old tribal girl had been raped by two policemen within the police compound. Nowhere in the statute book has there been mentioned a need for physical marks of resistance or the use of force to signify lack of consent. This triggered a series of campaigns for changes in rape laws which finally led to the Criminal Law (Amendment) Act 1983. The Criminal Law (Amendment) Act 1983, improved the earlier situation, to a great extent wherein ‘custodial rape’ was recognized as a separate offence.

CRIMINAL LAW AMENDMENT OF 2013

On 16th December 2012, a female physiotherapy intern was beaten and gang raped by four men in the capital. Despite treatment, she died from her injuries three days later. There were huge protests all over the country demanding better safety for women. The incident got the attention of the international media and the Government faced criticism from all quarters. The United Nations Entity for Gender Equality and Women Empowerment called upon the government to do everything in their power to take up radical reforms, ensure justice and reach out with robust public services to make women’s lives more safe and secure.

In the wake of this unrest and furore the Government of India set up a three member committee headed by the former Chief Justice of India Justice JS Verma, Justice Leila Sheth and Justice Gopal Subramanium to look into the adequacy of the legislations that afforded protection and security to the women in India. Based on the recommendations of this committee an anti rape ordinance was signed by the President and was passed by both the Houses of the Parliament and thus the Criminal Law (Amendment) Act of 2013 came into existence.

It amends the Indian Penal Code (IPC), 1860, the Code of Criminal Procedure (CrPC), 1973, the Indian Evidence Act (IEA), 1872 and the Protection of Children from Sexual Offences Act, (PCSO), 2012.

Section 375 of the Indian Penal Code, 1860 limited rape to penile vaginal penetration and stated that the victims could only be female and perpetrators male. The Amendment Act of 2013 was a huge improvement over this in many ways. Firstly the offence of rape was replaced with sexual assault. It includes within its ambit a wider range of sexual offences than just penile vaginal penetration. It is also gender neutral and hence now both men and women can be victims and perpetrators. Five new subsections were added to Section 375.

They are as follows:

Section 375 after the amendment thus not only includes penetration by the penis but it also includes other offences like forced oral sex, penetration by foreign objects, sodomy as also forced sexual touching among other things. Subsections A, B, C has been taken from the recommendations of the Justice Verma committee but Sections D and E are completely new sections. Subsection D in the JS committee was defined simply as the offences of cunnilingus or fellatio but in the Act these words have been replaced with a more detailed description of the offence. However an exception for medicinal or hygienic purposes was added in the Act for all of the above offences.

Prior to the Act Section 375 contained six circumstances under which forced sexual intercourse would be held to be rape. The first five of them were accepted in toto. The sixth was however amended to increase the age of consent to 18 years from the initial age of 16 years. And a new seventh situation was added which talks about cases where the person is unable to communicate consent. However, sadly enough it retained the exception of forced marital intercourse to rape.

A new proviso has been added that lack of physical resistance will not amount to consent. This position had already been established in the Mathura rape case. But many courts still continued to rely on the presence of physical injuries to convict the accused as there was no formal legislation on the same. So by its inclusion in the Indian Penal Code, there should be a change in the mindset of the judiciary.

Certain changes have been introduced in the Code of Criminal Procedure and Evidence Act , like the process of ‘recording the statement’ of the victim has been made more victim friendly and easy but the two critical changes are firstly that the ‘character of the victim’ or her ‘past sexual history’ is now rendered totally irrelevant.

Secondly there is now a presumption of ‘no consent’ in a case where sexual intercourse is proved and the victim states in the court that she did not consent .Therefore no longer can the court say that it was a case of consensual sexual intercourse simply on the basis that the woman was habituated to sexual intercourse or because she had previously had consensual sexual intercourse with the accused.

CRIMINAL LAW AMENDMENT, 2018

The Criminal law amendment, 2018 was the result of two unfortunate rape cases, one in 2017 at Unnao, Uttar Pradesh and one in 2018 at Kathua Jammu and Kashmir.
Under section 376(1) the punishment for the rape of a woman is prescribed to be of minimum ‘ten’ years rigorous imprisonment which may extend to imprisonment for life. Thus, the quantum of punishment has increased from a minimum of seven years to a minimum of ten years. While the punishment for rape on a woman under sixteen years of age has been added by the amendment under section 376 (3).

Punishment in such cases has to be rigorous imprisonment of a minimum twenty years which may extend to life imprisonment and punishment for rape on a woman under twelve years of age has also been added by the amendment. The punishment in such cases is defined as a minimum twenty years rigorous imprisonment which may extend to imprisonment for life. The offender in such cases can also be punished with ‘death penalty’ under section 376AB. Thus, for the first time, death penalty has been introduced for the offence of rape considering the gravity of the offence.

Moreover, Section 376DA and 376DB have been added by the amendment which deals with punishment for gang rape on a woman under sixteen years and twelve years respectively. The punishment in such cases has to be invariably imprisonment of life. However, for gang rape on a woman under twelve years of age death penalty can also be awarded.
Clause (i) of Section 376(2) has been omitted.

There have been simultaneous amendments in the Cr.P.C, 1973 to meet the ends of justice in such cases of rape. Thus, if a person is accused of rape on a woman of under sixteen years of age, he shall not be granted anticipatory bail under Section 438 by a High Court or a Court of Session. The amendment has provided for speedy trial and investigation. The investigation has to be mandatorily completed within two months. The appeal in rape cases has to be disposed within six months. Moreover, the amendment has also made two changes in Section 439 of the Code.

A proviso has been inserted which states that the High Court or the Session Court has to give notice to the public prosecutor within 15 days of which it receives the bail application of an accused of raping a girl under 16 years of age.

A sub-section has been inserted which makes the presence of informant or a person authorized by him mandatory during the hearing of bail application of the accused in such cases.

Section 42 of the ‘The Protection of Children from Sexual Offences Act, 2012’, deals with alternative punishment that has been amended to include Sections 376AB, 376DA, and 376DB.

The Evidence Act, 1872; section 53A and Section 146 have been amended to make the provision of the Act to be in consonance with the amendments in other Acts.

IMPLEMENTATION OF LAWS

While we have come up with certain laws and amendments therein do we have an effective implementation mechanism to implement the law in its letter and spirit? To answer this question the working of the police force and the judiciary needs a careful looking into. The investigation procedure in the case of rape begins with the lodging of a First Information Report with the police under section 154 of the Code of Criminal Procedure, 1973.

The next step is the actual investigation of the offence and finally sending the case to court with the relevant evidence under section 170 of the Criminal Procedure Code. If however the investigation yields no relevant evidence and no case is made out, then they can make a petition to the court to close the case. The problem begins at the very first step of lodging a First Information Report. Reluctance is shown even to lodge the same and even if they do it is apathetically framed and does not contain all the relevant information. This is one of the major reasons for low reportage of rape cases.

There are several reasons as to why this occurs. Large sections of the police force are actually sympathetic towards the accused and believe the woman is herself responsible for it. As revealed by an undercover operation conducted by Tehelka in the Delhi NCR region, when asked to explain the rising causes of rape, fingers were pointed at the victim herself, her ‘suggestive clothing’ and so called provocative behavior. Some policemen were even of the belief that genuine rape victims never file a complaint and the ones that do are extortionists and of loose morals.

They heighten the trauma of the rape victim by asking embarrassing and unnecessary questions, the intention being to make a dig at the victim’s character. Another reason for not filing an FIR is that they want to fudge the crime rates. Lower the crime rates in the area under their charge, the better the performance ratings of officers and hence increased chances of promotion. They often conduct the investigation in a lack lustrous and casual manner taking their own time to do so.

As a result of this important evidences are not collected in time as it might have already been destroyed by the accused. Corruption is also widespread and hence they are biased in favour of those in powerful positions, higher economic status or those belonging to a higher class. This prejudice or bias leads to a vicious cycle. They blame the victim and hence conduct a shoddy investigation. Due to improper collection of evidence, the judiciary finds loopholes in the case and it results in acquittal of the accused.

In the wake of the Delhi gang rape incident in 2012 certain measures were passed by the government to make the police more gender sensitive when it came to dealing with cases of sexual violence. These included adding ‘gender sensitivity’ as an index for the annual performance appraisal of police officers. As also regular surprise checks at police stations to check whether they are dealing with complaints related to women effectively. While these measures are certainly helpful, the attitude of the police force cannot be expected to change overnight.

There is need for gender sensitive training and education across all ranks of police personnel. These values and principles instilled during the training will have to be sustained by the organisational culture. Victims of sexual violence often find it difficult to answer probing questions by male officers. This leads to failure in getting information and weakening of the case. Measures for increasing the percentage of women police officers could be helpful as the rape victim would find it easier to open up to a woman officer. These women officers should be trained in supportive and sympathetic investigation techniques to make the whole process comfortable and non hostile for the victims.

There is no nationwide policy or guidelines to govern the medical treatment and collection of forensic evidence in rape cases. The collection and compilation of forensic evidence into medical reports is of key importance. However, there is no uniform format for its compilation. This results in uneven data collection by doctors across the country. The law was amended in 2006 with respect to this.

Section 164 A of the Code of Criminal Procedure now states that a doctor conducting a forensic examination should record the name and address of the survivor and the person who accompanies her, her age, a description of material taken from the person of the woman for DNA profiling, any marks of injury on her person, the general mental condition of the survivor, and ‘other material particulars’ in reasonable detail.

Inspite of the amendment, uniformity still does not exist as it leaves ‘other material particulars’ to the individual judgement of the doctors without specifying what exactly it entails. Often there is delay in the examination of the victim, which results in loss of evidence and weakening of the case against the accused.

This occurs due to the fear of social stigma attached to the crime, as a result of which they often hesitate and take time in coming forward to file the FIR. Doctors also are often reluctant to examine and treat the victims unless they have registered a police complaint. This goes against the law as section 164 A clearly states that no hospital can refuse treatment to a rape victim. The Government firstly needs to establish a uniform protocol specifying all aspects which need to be looked into when conducting the examination. Provision of training to write medical opinions accurately and scientifically without prejudice against survivors is also essential.

Apart from providing medico-legal evidence and immediate treatment to the victims, health care providers have the important task of providing them with psychosocial support and counselling. The latter aspect is given no importance in Indian laws. However it is essential as they become mentally traumatized as a result of the crime itself and throughout the trial when they are subjected to character assassination and rigorous questioning by the police, defense counsel etc.

This patriarchal attitude is reinforced by conventional notions of chastity and morality. The judiciary views rape as a violation of her chastity rather than the violation of her physical person, her right to bodily integrity, security and freedom from violence .The physical and psychological trauma is completely ignored. There is more focus on the loss of family’s honour and the possibility of not getting married.

This view of the courts makes it difficult for women to obtain justice. This view is incorrect as rape is not a sex crime it is rather a weapon used to subjugate women. It gives more scope to the perception that it was a compulsive act that happened due to some provocation from the victim herself. This bias is reflected almost throughout the trial whether it be in the cross examination of the victim to the sentencing of the accused.

Apart from this there is huge amount of delay in conducting trials due to the backlog of cases in the courts. Rattled by the Delhi gang rape incident on December 2012, the Government set up 73 fast track courts across the country to try cases of sexual offences only. This could prove useful in faster expedition of justice in rape and other cases of sexual violence as well.

THE WAY FORWARD

Our rape laws have undergone several changes over the years. Still there has been rise in number of cases though our laws evolved to meet those situations. The development has mainly been in our understanding of the concepts like ‘burden of proof’, ‘consent’ and ‘force’.

With time the definition of rape widened. The Criminal Law (Amendment) Act, 2013 and the Criminal Law (Amendment) Act, 2018 were path breaking and watershed moments for Indian Criminal Law in this context.

These reforms to rape laws also changed the way we understood the offence of rape and helped bring the discussion on the crime out in the open. However, it remains a reality that crimes against women and sexual violence hasn’t stopped rather they have increased. Reports even claim that rape is one of the fastest-growing crimes in India. The number of cases has doubled in the last two decades. The heinousness of these crimes and the ghastly nature in which they are committed has become a growing concern. It seems that we are in a very serious situation now more than ever.

Our Laws on Rape haven’t answered the tough questions and we believe that they won’t be answered them anytime soon. The Center for Disease Control and Prevention (CDCP Approach) in the US came out with a report which they called ‘Public Health Approach to Violence Prevention’. The approach theorizes a four-step solution to curbing violence. Firstly, define the Problem. Secondly, identify the risk and protective factors. Thirdly, develop and test prevention strategies, and Fourthly, assure widespread adoption of the strategy.

• Identifying Stakeholders

There are essentially three stakeholders – the Accused, the Victim, and the Institutions as a whole who are directly or indirectly related to the administration of justice within the context of the given offence. But it is the challenges posed by these stakeholders that present to us the difficulty in defining the problem. 

Furthermore today, we do know with the kind of data that is available, that there is a new class of victims of sexual offences. The LGBTQ+ community including men and young boys in many instances themselves are unsafe. The family of the victim and the accused are equally victims as per our study.

The question, therefore, posed before the third stakeholder is this – Do we have adequate mechanisms in our Institutional Framework to bring to our attention every single offence of sexual violence that takes place within our jurisdictions? Statistics show that the Police are more inclined to shrug off a case especially by a woman, terming it as ‘fake’. Our Institutions have developed the so-called ‘Victim blaming culture’.

The situation is even more hazardous when Dalit women and those already on the wrong side of the social divide approach the criminal justice administration to seek remedies in such kinds of offences. Many women who report their cases, pull out at the step down of the investigation itself primarily because of the unpleasant experiences they and their families are made to go through.

So, have we defined the problem? The direct answer is No. However, we do know who we are dealing with. That we are dealing with a bunch of men who are not deterred by the Institutions that we have built inspite of the stricter and harsher punishments. We do know that our victims are way more than we know and think we know. We also know that our laws don’t have definitive solutions for the unique problems posed by each of these stakeholders. We know that our institutions have perpetrated sexual violence in the years that have gone by and this is because of how we allow them to function. So, we haven’t defined the problem. But we have certainly outlined a set of issues that will help us in the next step. 

• Identifying the Risk and Protective Factors 

The moot point is, have our institutions looked at the intersectional issues of rape, and have they studied Gender as a social structure? Have we made our media organizations literate and more sensitized towards these crimes? Have we re-examined and reimagined masculinity and taught this in our curriculum at schools? We are all taught in grade four during moral science classes that we shouldn’t commit theft, are we taught we shouldn’t commit rape? 

Have we promoted such social norms or taught skills to prevent sexual violence? We haven’t provided opportunities for empowerment to both the accused as well as the victim. We have instead made our victims look weaker – both socially as well as legally. This doesn’t help create a protective environment. Therefore, the support we extend to the victims post such incidents is only symbolic.

As a nation, we seem to be least affected by the development that rape is now increasingly Political and that this is concerning. We have made absolutely no development in the last 73 years when it comes to removing structural and institutional biases or barriers against women and Trans communities. Our public outrage has been completely misguided in so far as it is focused entirely on demanding the hangings of those convicted and ensuring speedy disposal of cases to ensure speedy justice. But, does this allow for the empowerment we have been searching for? Does this allow for the safety and security that a person should feel while they are out on the street alone at night? Have we created safe spaces for women, children, and minors?

Thus, our risk factors are therefore Legal, Social as well as Political which simply contribute to increasing the likelihood of a person becoming a victim or a perpetrator of violence. Therefore, it is important to point out that our rape laws don’t answer these situations because it isn’t their duty to do so. And that’s what makes them obsolete because they function as a singular weapon with an illusionary sense of superiority.

• Protective factors and Prevention Strategies

It’s not an easy job to devise preventive strategies. Infact many worthy men, women, and organizations have already attempted to chart out the plans in which we must deal with such crimes. Criminologists, Psychologists, and Psychiatrists have spent their lives trying to understand why rapists do what they do. There is no definite answer to this. But, as already discussed, one thing that appears to be a common conclusion in all of these researches is that we need to change the way we deal with rape. Indian law still does not recognize marital rape as a grave criminal offfence thus it’s not addressed by the law makers. The developed nations have recognized it as an offence where as Indian law gives primacy to marital status over consent. There has to be some kind of preventive measures or effective legal mechanism to contain the problem.

We can start with the three most radical changes. Firstly, defund the police and create alternate organizations. Secondly, strengthen the family and educational institutions, and Thirdly, take effective steps to empower the stakeholders. 

In such a situation, it is high time that a sensitive and more empathetic institution needs to be built. Community Prevention Centers (CPCs) could be a step in the right direction. These CPCs will be parallel organizations working in Police Jurisdictions and would constitute of members who are – Sociologists, psychiatrists, psychologists, women activists, feminist groups, NGOs working in Child welfare programs, and other such support groups. Now, these support groups would, under CPCs work as a branch of the state.

• Strengthening Family and Educational Institutions 

There should be an end to the devaluation of women. It must end in our culture and our religious traditions as well. It must be erased from our history and our laws. We must end the culture of looking at women and children the way we do. This will happen only when you break free the set norms of gender. Gender sensitization, teaching about sexuality, educating children about the institution of marriage, abortion, calling for ending the victim-blaming culture and rape jokes, and setting new notions of masculinity can only be done by families and educational institutions right from the foundational stages of academic curriculum. These subjects need to be added within our academic framework. 

• Empower Stakeholders

Empowering the stakeholder – i.e. either the ‘to be perpetrators’ of such crimes by identifying them in their vulnerable geographical areas and groups or, the victims of such crimes by rehabilitation mechanisms is an important step in helping change mindsets. Empowering CPCs, stopping any categorization of the crime such as legitimate rape, real rape, date rape, marital rape, etc. and defining the crime simply as an act of sexual violence against anyone without consent would educate and thereby empower those exposed. There is also a need to end the ban culture. The culture of banning porn, late-night shows and anything that supposedly assists in the commission of the offence is merely getting away with taking any kind of responsibility as a system. 

The attempt we make in this piece is to lay down an alternative framework to the status quo that exists. We don’t claim that this framework is full proof or exhaustive. There ought to be problems within this typology as well. However, we strongly believe that a consequentialist approach to dealing with rape will only make our prisons more crowded but will not assure or even attempt to assure safety to women, children, and others. This is because of the challenges that different kinds of stakeholders pose to our systems. A sociological approach tailored to meet specific situations by initiating early and appropriate interventions by building new models and doing away with the defunct ones should be the ideal way to go.

CONCLUSION

The discourse on sexual violence in India is slowly changing whereby the male culprit is being questioned and challenged, instead of blaming the victim. A paradigm shift is required to move beyond the ideas of ‘stigma’ and ‘shame’ in addressing survivors of rape atrocities. There is a need to view the women as ‘survivors’ rather than ‘mere’ victims of rape. A lot has changed after the Nirbhaya, Unnao and Kathua rape cases.

The Criminal Law (Amendment) Act8, 2018 has brought in more stringent laws to contain the crime. As a result significant changes emerged where the extent of punishment goes to death penalty and not mere detention or fine. These amendments have the objective of making anti-rape laws more severe so as to decrease the rate of crime. The time frame of investigation and appeal, if implemented properly, can bring down the crime rate. However, these amendments need to be supplemented with other changes in the criminal justice system for overall effective results.

Also Read: Rights of undertrial prisoners in India