CASTRATION – A SOLUTION?

Author: Pulkit Gopalkrishan Popli, (2nd Year student of IIT Kharagpur Law School)

“Issue writ, direction or order to the Union of India, the respondent No. 1 to consider to impose castration as an additional punishment for child sex abusers and child rapists;

Issue writ, direction, or order to the respondent No.2 (Ministry of Women and Child Development) to frame guidelines in regard to the protection of the children from sexual abuse and impose castration as an additional punishment for the rape of the minor girls to protect their constitutional rights.”

Source: Google Image

This was the prayer of the Supreme Court Women Lawyers Association (SCWLA) v. Union of India & Anr.[i] that was heard by the Honorable Supreme Court by the bench of Justice Dipak Misra and Justice NV Ramana on January 11, 2016. The bench clearly mentioned that the law should not be made sentimentally or emotionally and distanced itself from issuing any such direction or punishment as there is a law already available for the same. But the court further said that the parliament may go on to amend the penal provisions to award the harsher punishment for raping girl child and may also define the term 'child' in respect of rape as the offence.

Castration as defined by the Merriam Webster’s dictionary means the removal or to deprive of the testes. The Castration may be done surgically or chemically by anti-androgens. The demand of castration as punishment for the sexual offences is not new and has been voiced from time to time.  The Madras High Court in October 2015 in the case of Jonathan Robinson v.  The Inspector of Police[ii] perhaps got sentimental or emotional about the same offence and went on to suggest the castration as the punishment. Justice Kirubakaran in this judgment in the very first paragraph has very strongly and heavily recommended the punishment saying that the brutality of the offence would justify the punishment. Further, taking a dig at the Human Rights Activists, Honorable Justice has said that they are aware that there would be a lot of hue and cry by the people who claim themselves as the Human Rights Activists but they should also think about the human rights of the victims and the agony and suffering that they have suffered.

Justice Verma Committee Report of 2013 in paragraph 40 on the Castration as penalty mentions

“We note that it would be unconstitutional and inconsistent with basic human rights treaties for the State to expose any citizen without their consent to potentially dangerous medical side effects. For this reason we do not recommend mandatory chemical castration of any type as a punishment for sex offenders. For the same reason the government of India also does not prescribe chemical castration as a family planning method.”

If the reliance is put on the report of Asian Centre of Human Rights, India's Hell Holes: Child Sexual Assault in Juvenile Justice Homes, more than 48,838 child rape cases were recorded from 2001 to 2011 and that India saw an increase of 336% of child rape cases from 2001 (2,113 cases) to 2011 (7,112 cases). The report of National Crime Records Bureau 2013, in Chapter 6 very proudly mentions that a total of 12,363 cases of child rape were reported in the country during 2013 as compared to 8,541 in 2012 accounting for an increase of 44.7% during the year 2013. Maximum of child rape cases were reported in Madhya Pradesh (2,112 cases) followed by Maharashtra (1,546 cases) and Uttar Pradesh (1,381 cases). These three States together accounted for 40.8% of the total child rape cases reported in the country. On an average, 3 children out of one lakh children population are victims of rape. For population of every one lakh children , maximum of such incidents were reported in Mizoram and A & N Island (16 children each) followed by Delhi (14 children), Sikkim and Goa (12 children each).

Though there has been a strong rise in the support for the abolition of death penalty and harsh punishments such as castration, Guam has recently passed “Chemical Castration for Sex Offenders Act” in September 2015 which requires the chemical castration of the offenders going out on parole to minimize the risk. This Act was passed after the alarming rise in the number of Children related offences in Guam. It has also received a mixed response.

Now, with the huge number of the offences throughout the country, it is hard to predict whether the sentiments of Justice Kirubakaran are in the right direction or the logics of Justice Misra and Justice Ramana. But one thing is clear that India is one of the 5 countries with the highest number of Child abuses and this problem needs immediate and effective solution, either by parliament or by judiciary. 

Disclaimer: This blog or any post thereof is not to be considered to be in any way associated with the official stand of IIT kharagpur or RGSOIPL on the issues being discussed in the said post. The opinions on the blog are the authors own and should not be considered as legal advice.

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[i] Writ Petition (C) No. 4 of 2016 [PIL]

[ii] Crl. O.P.(MD) No. 11735 of 2014

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A Tribute to Justice Krishna Iyer

Author: Anjana Srinivasan, (2nd Year student of IIT Kharagpur Law School)

Justice V.R. Krishna Iyer has been hailed as the “judicial conscience of India” and credited with the responsibility of “humanizing law in India”. He was a ceaseless crusader of human rights and had a passion for compassion. He was a rare combination of a legislator, a minster and a judge.

Justice Krishna Iyer was born on November 15, 1915 to a leading criminal lawyer V.V. Rama Ayyar in Thalassery. He had his education at the Basel Mission School, Thalassery, Victoria College, Palakkad, Annamalai University and Madras Law College. He started legal practice in 1937 under his father in the Thalassery and appeared for workers and peasants in several agrarian struggle-related cases in his early years of practice.He became a member of the Madras Legislative Assembly in 1952. After the 1957 Kerala Assembly Elections, when the first Communist government in Kerala headed by E.M.S. Namboodiripad came to power, he held portfolios such as law, justice, home, irrigation, power, prisons, social welfare and inland navigation in the. He passed several pieces of people-oriented legislations during his tenure as a minister. He resumed his legal practice in August 1959 and continued the legal profession after he lost the 1965 Assembly election. He was appointed a judge of the Kerala High Court on July 2, 1968. He served as a Member of the Law Commission from 1971 to 1973.He was elevated as Judge of the Supreme Court on July 17, 1973, and retired on November, 14, 1980.

Justice Krishna Iyer’s has delivered landmark judgments during his tenure as a judge.His judgments are considered to be a thesis on the subject. His judgments have a human touch and are presented in an artistic manner. Let us have a look at some of his judgments that have created history and revolutionized the legal world.

He threw open the doors of the judiciary to every person of the country by emphasizing on the need for relaxing the rule of locus standi, in the case of Fertilizer Corporation Kamgar v. Union of India.

In Sunil Batra v. Delhi Administration, he declared the practice of keeping undertrials with convicts in jail as inhumane, which earned him the title of “Father of prison jurisprudence”.

In the case of Maneka Gandhi v. Union of India case, Justice Iyer noted, “Personal liberty makes for the worth of the human person. Travel makes liberty worthwhile.” He expanded the scope of Article 21 to include the liberty to travel.

The jurisprudence of bail was humanized by Justice Iyer, which has been a lasting contribution to the liberation of under trial prisoners. In G Narasimhulu judgment, he observed, “It makes sense to assume that a man on bail has a better chance to prepare or present his case than one rendered to custody. And if public justice is to be promoted, mechanical detention should be demoted."

By interpreting Article 21 of the Indian Constitution Justice Iyer’s Bench directed the State to provide free legal services to an accused person in custody. He profoundly contributed to prison jurisprudence and humanisation of the sentencing system in India.

His greatest contribution to our constitutional jurisprudence is his landmark judgment in Samsher Singh. In whether the President or Governor have independent power than the Cabinet Justice Krishna Iyer observed, "the President, like the King, has not merely been constitutionally romanticized but actually vested with a pervasive and persuasive role…he is not rival center of power in any sense…the President and Governor shall exercise their formal constitutional powers only upon and in accordance with the advice of their Ministers save in a few well-known exceptional situations like (a) the choice of Prime Minister (Chief Minister), restricted though this choice is by the paramount consideration that he should command a majority in the House; (b) the dismissal of a Government which has lost its majority in the House but refuses to quit office; (c) the dissolution of the House where an appeal to the country is necessitous."

Summing up in the words of Shri Soli J. Sorabjee, a former Attorney General of India:

"Mr. Krishna Iyer has a heart whose natural generosity and glowing warmth would scorch out any trace of malice or meanness. He cannot nurture a grudge towards any one, including unkind critics who have approached him with singular lack of humanity and understanding and who in learned tomes have raged and raged against the spreading of the light. Like Newman’s True Gentleman, he had too much good sense to be affronted by insults and was too well employed to remember injuries…There are judges who are more erudite than Justice Krishna Iyer, judges who have an excellent memory for Supreme Court and House of Lord citations, judges who can master the record of a case in a few minutes. But the one essential quality that distinguishes him from his judicial brethren and puts him in a class of his own is compassion. He took human suffering seriously and dispensed justice with compassion, which he possessed in abundance .”

His loss is a great loss to the legal fraternity.  He was not only a legislator, a minister and a judge but he was humane too. The humaneness made him stand apart from his peers. Let us all pay our tributes to such a great personality. Let us all pledge that we will be compassionate to our fellow human beings and work for the holistic development of the society at large.

Disclaimer: This blog or any post thereof is not to be considered to be in any way associated with the official stand of IIT kharagpur or RGSOIPL on the issues being discussed in the said post. The opinions on the blog are the authors own and should not be considered as legal advice.

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Legal News Updates

We bring you the updates for last week. Hope it updates you with all the news from legal world.

Updates: 23rd November to 07 November 2014.

The Supreme Court has constituted a Special Bench christened ‘Social Justice Bench’ to achieve the Constitutional  goal of securing ‘social justice for the citizens of the country. The bench comprising of Justice Madan B Lokur and Justice UU Lalit will hear all cases in the Supreme Court falling within the domain of “social justice”. The Bench will start functioning from December 12 and will sit at 2 pm on every Friday.

The Centre is planning to partially open up legal market to foreign firms. According to the proposal put forward by the Centre, foreign lawyers could be permitted to practice in India in conjunction with Indian lawyers, as a joint venture, with a cap on foreign participation. Also, advisory or non-litigious services in Indian law could be opened up subject to foreign lawyers going through a prequalification examination in various aspects of Indian law. However, the Bar Council of India and Society of Indian Law Firms (SILF) have voiced their opposition to this proposal.

The Delhi High Court refused to quash the FIR filed against three men who tried to molest a Delhi Police Constable. The woman registered an FIR against the three persons, who incidentally lived in her locality only. She later agreed to take back her complaint, after the intermediation of some people. When the matter reached the Delhi High Court for quashing of FIR, Justice Pratibha Rani, refusing to quash the FIR said, ‘if a woman police officer can’t walk on the street what will happen to common girls?’

The Union Cabinet, chaired by the Prime Minister has approved the introduction of the Companies (Amendment) Bill, 2014 in Parliament to make certain amendments in the Companies Act, 2013. The Companies Act, 2013 (Act) was notified on 29.8.2013. Out of 470 sections in the Act, 283 sections and 22 sets of Rules corresponding to such sections have so far been brought into force. In order to address some issues raised by stakeholders such as Chartered Accountants and professionals, some amendments have been proposed.

The Allahabad High Court dismissed a PIL challenging Rule 7 of the recently released Bar Council of India Rules, 2014. Under Rule 7, a lawyer must practice for two years in a trial court and three in a high court before being allowed to practice before the apex court. It was dismissed not on merits, but on the ground that Rule 7 has still not been notified and therefore it would be an exercise in futility if the petition is examined on merits.

The Delhi High Court has held that the Competition Commission of India (CCI) has the right to file an appeal in cases where its probes have been stayed by courts. The order came after a CCI appeal in a dispute involving JCB India Ltd, in which all CCI proceedings, including the probe, were stayed by the HC after its director general raided JCB’s premises. Doubts were raised whether CCI could file such an appeal, as it was the CCI that ordered the probe against JCB in the first place; the court ruled that CCI has the right. The court also held that “the interference by us at this stage is unwarranted”. It asked both parties to raise their issues before the single judge who is hearing the case.

The Delhi High Court recently interpreted S.107A expansively to conclude that it is applicable when a party exports a patented product to a third party outside India as long as the purpose of export is the facilitation of research. The case relates to the Compulsory License granted by the Court to Natco for the compound Sorafenib tosylate. One of the conditions was that Natco should use the licensed product “solely for the purpose of making, using, offering for sale and selling the drug covered by the patent for the purpose of treating HCC and RCC in humans within the territory of India”. However, Bayer found that Natco was exporting the product outside India. In March this year, an interim order was passed by the Delhi High Court preventing Natco from such export. The present application was filed by Natco to seek permission from the Court to export 1 kilogram of Sorafenib to a Chinese Pharmaceutical Company for preparation of a trial batch of the generic drug in China.

The application filed by Venus Remedies Ltd. (the applicant) for an invention titled “Parenteral Composition Comprising Ceftriaxone and Vancomycin for Bacterial Resistance and Process of Preparation Thereof” was opposed in a pre grant opposition by (Akums Drugs & Pharmaceuticals) on the grounds of lack of inventive step as required under Section 2(1)(j), 2(1)(ja) and 2(1)(l) and also on the grounds of section 3(d) and 3(e) of the Patent Act. The opposition, however, was not successful. The invention was a single unit combination of two incompatible antibiotics (Ceftriaxone and Vancomycin) which are combined together with stabilizing agents, such as L-arginine, EDTA and Na₂CO_3.  The Controller observed that the claimed invention was held not to be a mere aggregation of property/features since Ceftriaxone and Vancomycin are made compatible, due to the existence of a chemical stabilizing and solubizing agent. The opponent also contended that various studies have shown the concomitant use of vancomycin and ceftriaxone and cited two documents.  However, both these documents failed to form ‘prior art’ because they were published on 3/3/2006 and 20/12/2005 after the filing of the present patent application in 14/2/2005. Moreover, the prior art failed to contemplate the problem of incompatibility between Ceftriaxone and Vancomycin. Also, the contention on Section 3(d) was dismissed on the ground that nothing in the prior art qualified as a “known substance” and hence Section 3(d) was not attracted.  The Controller declared that that the invention was both a technical advance as well as economically significant and therefore qualified the inventiveness criteria.

We hope that this summarizes the last week's News. Your comments and suggestions are welcomed.

Until next post of weekly News updates.

Anjana Srinivasan, (2nd Year student of IIT Kharagpur Law School)

For 'OFF Court.'

Disclaimer: This blog or any post thereof is not to be considered to be in any way associated with the official stand of IIT kharagpur or RGSOIPL on the issues being discussed in the said post. The opinions on the blog are the authors own and should not be considered as legal advice.

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Transfer of a Judge

Author :  Pulkit Gopalkrishan Popli, 1st Year student of IIT Kharagpur Law School.

Often the judgments delivered by various courts receive various responses on the basis of credibility, justice served, equitable grounds etc. But recently a judgment delivered by Chief Justice of Kerala High Court sparked a controversy. The reason of the controversy was that Hon'ble Judge Manjula Chellur has been transferred to the Kolkata High Court where she assumed the charge on 5th of August. The transfer warrant was signed by the Honorable President on July 21 while the verdict on case was delivered on July 25. The verdict declared the 2007 eviction-drive in Munnar as illegal. The question arises, could a judge still deliver judgments after a transfer warrant was issued?

As per Article 222(1) the President may, after consultation with the Chief Justice of India, transfer a Judge from one High Court to any other High Court. According to the Delhi High court rules,

“Every District Judge or Sub-Judge proceeding on leave or transfer, must, before making over the charge, sign a certificate that he has written judgments in all cases in which he has heard arguments. Should an officer be forced to lay down his charge suddenly, he shall, nevertheless, write the judgments in such cases, and send them for pronouncement to his successor.[1]”

This article along with article 217 has been the center of controversies. Article 217 states that 

“Every Judge of a High Court shall be appointed by the President by warrant under his hand and seal after consultation with the Chief Justice of India, the Governor of the State, and, in the case of appointment of a Judge other than the chief Justice, the chief Justice of the High court, and shall hold office, in the case of an additional or acting Judge, as provided in Article 224, and in any other case, until he attains the age of sixty two years Provided that-

              (a) a Judge may, by writing under his hand addressed to the President, resign his office;

             (b) a Judge may be removed from his office by the President in the manner provided in clause ( 4 ) of Article 124 for the removal of a Judge of the Supreme Court;

           (c) the office of a Judge shall be vacated by his being appointed by the President to be a Judge of the Supreme Court or by his being transferred by the President to any other High Court within the territory of India”

In the Landmark Judgment of, S.P.Gupta v. Union of India case^[2] which is the last judgment of judge’s case trilogy, could be used to answer various queries regarding the transfer of judges.

In paragraph-900 at page 543 it was discussed whether how court views the transfer of judges? It was said that it is a transaction that takes place in two parts, the first is termination from the original high court and the second is the simultaneous appointment in the other high court.

This view is supported by the circumstance that the power of transfer is vested in the President. It is significant in this connection that the President is also the appointing authority in the case of appointment made under Clause (1) of Article 217 and is also vested with the power of removal in cases falling under Article 218 read with Clause (4) of Article 124. Therefore, it was necessary that the authority who has been otherwise vested with the power to appoint a Judge and to terminate his appointment should also be the authority to transfer him. It may be added that inasmuch as the transfer constitutes an appointment of the Judge to the other High Court. Article 219 comes into play and, therefore, the transferred Judge must, before he enters upon his office in that High Court, make or subscribe an oath or affirmation according to the prescribed Form.

Now the question that arises that the article stated that the office of the judge will be vacated by him while being transferred by the President to other high courts. So can we say that the judge that has been issued the transfer warrant can no longer work as a judge until he has joined the new high court? One of such questions arose in a case M.K. Sasidharan, Advocate Supreme Court and President v. The Hon'ble Chief Justice of India, Supreme Court of India and Ors.^[3]The Petitioner, an advocate practicing in the Supreme Court filed the Original Petition praying for the issue of a writ of Quo Warranto calling upon the 5th Respondent, a Judge of this High Court who has been transferred to the High Court of Gujarat, under what authority he has been discharging the functions as an Additional Judge of the High Court of Kerala. The 5th Respondent was appointed as an Additional Judge of the High Court of Kerala under Article 217 of the Constitution of India. He had sworn as a Judge of this Court on 11th April 1996. By virtue of powers vested in the President of India under Article 222 of the Constitution, the 5th Respondent was transferred to the High Court of Gujarat. He was given time till 9th May 1996 to assume charge as Judge of the Gujarat High Court. Later the President of India in consultation with the Chief Justice of India had granted extension of time from time to time up to 22nd July 1996. In the meanwhile the 5th Respondent was functioning as a Judge of this Court, hearing and disposing of cases. It was contended by the Petitioner that on his transfer to the Gujarat High Court, the 5th Respondent was ceased to be a Judge of this High Court and that he has no right or authority to discharge the duties of a Judge of this Court

In the judgement to this case, the court also said in paragraph 18:

“The prayer of the petitioner to issue a writ of quo warranto is not maintainable as the 5th respondent was appointed as an Additional Judge of the High Court of Kerala by the President of India in consultation with the Chief Justice of India and the warrant of appointment still holds good and he had been given time to assume office till 22-7-1996. He continues to be a Judge of this Court for all practical purposes.”

Thus from this case we can easily conclude that a judge continues to remain judge until she/he gets relieved from the previous court, not when she gets the transfer warrant but in order to maintain the spirit of the constitution it is preferred that they vacate it as soon as possible. So applying same standards in the case of Judge Manjula Chellur, it was duteous of her to deliver the judgment which and her authority of deliverance is not dubitable under law and complies with the spirit of constitution.

Disclaimer: This blog or any post thereof is not to be considered to be in any way associated with the official stand of IIT kharagpur or RGSOIPL on the issues being discussed in the said post. The opinions on the blog are the authors own and should not be considered as legal advice.

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[1]http://delhihighcourt.nic.in/writereaddata/upload/CourtRules/CourtRuleFile_AF9J1IE4.PDF

[2](AIR 1982 SC 149)

[3]AIR1997Ker35

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They have all the Answers!!

Author: Antriksh Mishra, 3rd Year student of RGSOIPL, IIT-Kharagpur.

Our politicians seem to have all the answers, especially when it comes to crimes like rape. What is the need of Psychologists, Criminologists and Legal experts when we have great minds like Mulayam Singh Yadav, Abu Azmi, Mohan Bhagwat, Abhijeet Mukherjee to replace them.

I will not state what these leaders have said as they have already received enough coverage in the social, print and electronic media.

Recently another suggestion came from the Gandhis of the BJP. Varun and Menaka suggested that if a juvenile commits rape he should be punished as severely as an adult under the IPC. To quote Varun“If he is old enough to rape he is old enough to be punished for it.”

But Varun that is not true, in fact a child’s involvement in any kind of crime proves that he is misguided and troubled.

And why just amend the law relating to the crime of rape? How is murder any different? Just because rape has been a hot, sensational and most talked about topic ever since the Delhi Rape case made headlines and the politicians hope to garner more political mileage and make more headlines by speaking out against it. Not that today’s political class would ever be involved in political appeasement.

To respond to Mr.Varun Gandhi’s statement, of course a juvenile is old enough to have sex, aren’t we all by the age of 15? That doesn’t mean we are old enough to understand the rights and wrongs of the society.

The age of puberty and the legal age of adulthood are two completely different things! These juveniles have no counsel or guidance to make them understand the rights and wrongs of the society. They are children struggling to find a place for themselves among their elder counterparts. So whose responsibility is it to provide them with proper counselling and guidance? Oh Yes!! There is a ministry set up for that purpose it’s called “The Ministry of Women and Child Development” and you’ll never guess who the Hon’ble Minister associated with this ministry is… Yes it is “Menaka Sanjay Gandhi.”

Their motto is “Holistic Development of Women and Children”and to achieve this they have adopted “The National policy for Children, 2013” which includes providing such guidance and help to children.

But all that was before the Minister had this epiphany.Now the meaning of “Development” has changed to “Developing children into Criminals.”Wow that is some idea! The political class has done it again, congratulations to yet another leader to come out with another brilliant idea. We the people of India can really get used to this.

What one fails to understand is why some activist and lawyers keep insisting on opposing such a game changing idea?

Ms Ved Kumari an expert on juvenile Justice Law and ex chairperson of Delhi Judicial Academy insists,

“Juvenile's involvement in the acts of 'adult' crime such as murder and rape does not imply maturity. On the contrary, it is direct evidence of vulnerability of juveniles to reckless behaviour. Once the juveniles are dealt under the criminal justice system, the children will turn much worse psychologically and are likely to commit crime again.”

Athiya Bose, an activist for the welfare of juveniles says“Studies from the western nations have already suggested that such initiatives are a failure and it becomes difficult for children to come back from the trauma that they suffer under the adult justice system.”

Nah!! What do they know? What makes them the experts? Other than having worked in the field of law and juvenile justice for the last decade.

Our politicians know better! They always have all the answers.

 Disclaimer: This blog or any post thereof is not to be considered to be in any way associated with the official stand of IIT kharagpur or RGSOIPL on the issues being discussed in the said post. The opinions on the blog are the authors own and should not be considered as legal advice.

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