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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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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