July 18th, 2009 at 07:08pm
Under Probate Law
Estate Planning Basics And The Law
Having a plan that determines how your assets are used during your life and after your death is a critical process that requires expert legal advice. Estate planning can help you decide how your assets are distributed. You may need to set aside resources for your long-term care. Plus, you might need to appoint someone to manage your estate in the event that you lose your own ability to do so. You may decide that a portion of your estate should be given to certain charitable organizations. Each of these circumstances can be included in an estate plan with the help of a lawyer.
Benefits Of Planning Your Estate
Without an estate plan, your assets can be distributed in a way that’s contrary to your wishes. When you die, a number of important legal issues regarding your assets emerge. The manner in which your estate is divided amongst your heirs, how taxes are handled, donations to charities and transfers of property are only a few of the many concerns an estate plan can address.
With the help of an experienced estate planning lawyer, you can ensure that your assets will be used according to your wishes. Your plan can distribute assets from your estate to your beneficiaries quickly and seamlessly. Your lawyer can help you determine an executor of your estate in the event of your death. An estate plan can minimize the taxes owed by your estate by giving the allowable maximum to various beneficiaries. If you’re a business owner, you can make sure your business operates uninterrupted by detailing plans of succession and distribution of income.
Potential Pitfalls Of Poor Planning
Millions of people fail to plan how their assets are divided when they die. As a result, their estate often ends up in probate. This is a process that’s best avoided whenever possible. In probate, a court examines a will (if one exists) and divides a person’s assets accordingly. When a will doesn’t exist, the court decides how best to allocate the assets from an estate. The entire process is time-intensive and expensive. You can avoid having your assets end up in probate by hiring an estate planning lawyer to set up trusts and other arrangements.
Using The Law To Protect Your Assets
The law stipulates how your assets can be divided after you die. With the help of an experienced attorney, you can leverage the law to protect your assets. A lawyer can help you ensure your estate isn’t vulnerable to a long and costly probate process. He can help you minimize the tax liability your estate will suffer upon your death. The sale and distribution of tangible assets can be detailed according to your preferences. By planning your estate with the advice of a qualified attorney, you can be confident that your affairs will be in order when you die. Not planning your estate well in advance can lead to an excessive and time costing adventure for your loved ones.
By Law Article
July 18th, 2009 at 02:52am
Under Banking Law
The banking industry in Thailand forms an essential segment of the nation’s financial services industry. In other words, banking sector in Thailand is well-established. The history of Thai banking dates back to 1865, when the Hong Kong and Shanghai Bank appointed its agents in Bangkok. Accordingly, the HSBC established a branch in Bangkok, thereby becoming the first bank to open a branch in the country.
Following the establishment of HSBC branch, many European as well as business banks opened their branches. As a result, foreign banks became the dominant players in the nation’s banking industry. In order to counter the supremacy of foreign banks, Siam Commercial Bank – the first Thai bank – was established in 1906. Later, more Thai banks were opened to trade with Asian countries, as a result of the Second World War, when majority of the foreign banks were forced closed.
After the world war, the Thai government introduced a protective policy in order to promote the growth of Thai banks in the country, which included limiting the operation of foreign banks to one branch office. As a result, foreign banks became less dominant players in the banking sector of Thailand. Since 1960, many innovative economic as well as social development plans have been introduced in the country, which in turn has led to rapid expansion of banking sector in Thailand’s provinces, resulting in banks numbering more than 3000 throughout the country.
Thailand’s modern banking system is made up of a variety of financial institutions including commercial banks, special purposes bank, and Government Savings Bank. Commercial banks are perhaps the most popular among the banks in Thailand. Commercial banks include both local and foreign banking institutions.
Being the biggest financial institutions in the country, Thai commercial banks render an array of services including acceptance of time savings as well as demand deposits, lending money via overdrafts, discounting of bills, and leasing. Their activities also cover fee-based services like custodian services, syndication of loans, feasibility studies, and consultations for mergers as well as acquisitions. Apart from these, in some instances, these banks issue negotiable instruments of deposit, apart from underwriting and issuing of debt instruments.
Commercial banks in Thailand, consisting of branches as well as representative offices of foreign banks, are functioned in accordance with the Thai laws and regulations formulated by the Ministry of Finance (MOF) and the Bank of Thailand (BOI.) Formed in 1875 by the Ministry of Thailand, the Ministry of Finance initially acted as an agency of the government to administer national finance, collect revenues, and disburse royal funds.
In 1933, it got its present name and status as a result of the passing of the Civil Service Reform Act. With eight departments and 16 state enterprises under its control, MOF’s major duties include supervision of matters in connection with operations of Government monopolies, property, and treasury. Additionally, it has power to provide loan guarantees for financial institutions, government agencies, and state enterprises.
Bank of Thailand started its operation in accordance with the formulation of the Bank of Thailand Act, on April 28, 1942. Among its duties are devising of monetary policy and supervision of financial institutions.
Now we will discuss banking regulation with regard to bank licensing. As per the Commercial Bank Act, first of all an application, containing particulars as entailed by the Ministry, must be filed with the Ministry of Finance in order to set up a commercial bank in Thailand. On the approval as well as the obtaining of a license from the Ministry, a commercial bank is opened as a limited public company.
However, a foreign bank has to comply with regulations formulated by the Thai government in order to open a branch in the country, such as the money should be brought from its head office. When comes to investment, Thai government permits foreign banks to hold 100% shareholding for up to a period of 10 years. After a period of 10 years, they are not required to divest their shares. But, in case, if they hold more than 49 percent of shares sold, they are not allowed to acquire additional shares.
In addition, the Commercial Banking Act has put forward certain laws and regulations for the maintenance of capital funds and reserves. As such, the commercial banks are required to maintain certain amount and types of the assets in the country.
Special purposes banks are state-owned financial institution whose activities are administered by the Thai government. However, they deal with only specific clients or projects. Included in the special purpose banks are the Bank for Agriculture and Agricultural Cooperatives, the Government Housing Bank, and the Government Savings Bank. When comes to the Government Savings Bank, it consists of an extensive network of branches throughout the nations.
Banking and financial sectors in Thailand are further categorized into: Asset Management Companies, Credit Froncier Companies, Finance and Securities Companies, and International Banking Facilities (IBF.)
By Law Article
July 17th, 2009 at 04:19pm
Under Entertainment Law
Rosen Law Firm
FOR IMMEDIATE RELEASE
April 26, 2007
PRESS RELEASE
Contact: Alison Kramer, 919-459-8157, akramer@rosen.com
Rosen Law Firm Offers Clients Research-Based Psychological PC Game for Children
Raleigh, N.C.-Rosen Law Firm, one of the largest divorce firms in the state, now offers its clients and their children a new therapeutic resource, Earthquake in Zipland by Zipland Interactive Ltd. It’s the first research-based psychological computer game aimed at helping children ages 7-13 cope with divorce.
“We’ve already worked with several clients who’ve used the game with their children,’’ says Lee Rosen, a board certified family law specialist and president of Rosen Law Firm. “ When parents split, they often find themselves in challenging situations on how to communicate with their kids and Earthquake in Zipland provides them with a unique tool.”
Through the main character, Moose, the game takes children and their parents on an interactive, exploratory quest where they face challenging tasks that uncover emotions including anger, loneliness, and conflicts surround loyalty. The game is designed to help children better cope with their parent’s separation through improving their communication skills.
“This is a tool that recently separated or divorced parents can utilize in effectively guiding their children through a smooth transition,” says Jennifer Coleman, life transition coach with Rosen Law Firm and a national certified counselor with a background in marriage and family counseling. “Children will have fun playing this interactive game while addressing some of the emotional issues they face concerning their parents’ divorce.”
Earthquake in Zipland is based on techniques and insights drawn from a variety of fields including clinical psychology, family counseling, and child and divorce/separation therapy.
***
About Rosen Law Firm
Rosen Law Firm has offices in Raleigh, Charlotte, and Chapel Hill. Founded in 1990, the firm is dedicated to providing individual growth and support to couples seeking divorce by helping them move forward with their lives. Our staffs of attorneys and other legal professionals expertly address the complex issues of ending a marriage. Our innovative approach acknowledges that divorce is so much more than just a legal matter. Practice areas include child custody, alimony, property distribution, separation agreements, and domestic violence relief. For more information visit: www.rosen.com
About Zipland Interactive
Zipland Interactive is in the process of developing other high quality edutainment computer games, aimed at helping children deal with common emotional and psychological issues in day to day life. The combination of the two different fields within the group – psychology and game play – has helped to produce a unique approach that is both entertaining and effective. For more information visit: www.ziplandinteractive.com
Rosen Law Firm
4101 Lake Boone Trail Suite 500
Raleigh, NC 27607
www.rosen.com
Divorce is Different Here
By Law Article
July 17th, 2009 at 02:58pm
Under Criminal Law
Whether you want to prosecute or defend yourself, finding a criminal attorney in LA can be a daunting task especially if you don’t have or know someone having, links with an attorney. Most people find attorneys with references or suggestions from others. An attorney that clicked for others might or might not be the one to defend or prosecute on your behalf.
In any case you can be your own best judge when it comes to finding a criminal attorney in L.A. A few simple points can help you decide whether the attorney you want to hire is the right one.
An attorney could be a part of a criminal law firm or have his or her own solo practice. This has its own pros and cons. A law firm can give you a choice of attorneys to handle your case that can make finding a criminal attorney in LA easier. On the other hand an attorney having his own practice could strike the right chord with you from the very beginning.
Irrespective of whether you find a criminal attorney in a firm or working as an individual, you should be at ease and feel at home when discussing the case with him or her. Your attorney should inspire and lift your spirit whether you are defending yourself or prosecuting.
What does it take to find a good criminal attorney?
For finding a criminal attorney in L.A., make sure that you don’t go just by the cost of hiring an attorney but also consider his or her reputation. Give equal importance to good experience and cost before hiring an attorney. An attorney with less experience and high fees could be as bad as the one charging very low fees and paying less attention to your case.
An attorney who has experience, listens to your case, gives you ample time, has adequate staff to cover your needs regarding the case and more importantly discusses his own business as a criminal attorney instead of trying to demean a competitor, can be the right choice.
Some of the areas covered by criminal attorneys include Domestic Violence, Drunk Driving, Juvenile Crimes, Possession of Drugs, Assault and Battery, Burglary, Robbery, Fraud, Sex Crimes, Grand Theft, Terrorist Threats, Illegal Firearm Possession, Capital Offenses and White Collar Crimes.
Make sure that your attorney has a good investigative team to cover and analyze every aspect of your case. Finding a good criminal attorney in L.A. can make the difference between getting charges framed and proved, for or against you. Take your time discussing your case with an attorney till you reach your comfort level and feel confident, before hiring one.
By Law Article
July 16th, 2009 at 06:18pm
Under Adoption Law
Many people do not know Allah. This series (1-69) is an attempt to help them to know their Creator.
Verses 7:145-146 of the Noble Quran talk about: 1) Allah shall turn away believing in His revelations those who behave arrogantly, 2) Allah says: if the arrogates see the right path they do not adopt it and vice versa, 3) Allah wrote for Moses the Law upon the tablets, 4) Allah said to Moses: Take the Torah seriously, 5) What were the Tablets of Torah made from and how many they were? 6) Could Moses lift and carry the Torah of the Quran or the Torah of the Bible? And 7) Allah showed Moses the dwelling places of Pharaoh in the Afterlife
——-
In thee previous article (68)
Allah said: O Moses! I have preferred thee above mankind, above the Children of Israel by My messages and by My speaking unto thee. So hold that which I have given thee, act upon that which I have given you, and be among the thankful that I chose to speak to you from among all people.
——-
The meaning of verse 7:145
And Allah inscribed for Moses in the Tablets, that is, the Tablets of the Torah about all things, one needs in religion, as an admonition and a detailing, an explanation, of all things.
In other words, And Allah wrote for Moses, upon the tablets, the lesson, the prohibition to be drawn from all things and the explanation of all things of the lawful and the unlawful, commands and prohibitions. Then Allah said to Moses:
1) Take it then firmly, seriously and earnestly, and enjoin your people to adhere to the fairest precepts in it i.e. command your people (saying): Take the better act and 2) I shall show you the abode of the wicked, evil-livers, the transgressors of Pharaoh and his followers, which is hell; the Eternal Fire.
This indicates that Allah showed Moses the dwelling places of Pharaoh and his followers in the Eternal Fire. These dwelling places are their forever!
Furthermore, It is said that these Tablets were made from the Lote-tree of Paradise, or of chrysolite or emerald, and they were either seven or ten. This seems reasonable because Moses would be able to carry them.
N.B. the Torah today would not be written on 7 or 10 tablets of chrysolite or emerald; one needs some 700-1000 tablets to write it on. These tablets need a big truck to carry them! A world champion of the weight lifting could not carry them!
This is the difference between the Torah mentioned in the Quran and the Torah found in the Bible!
The meaning of verse 7:146
Then Allah said:
I shall turn away from My signs, the proofs of My power, in the way of creations and otherwise, those who behave arrogantly in the earth without right, by humiliating them so that they do not magnify themselves;
and if they see every sign do not believe in it,
and if they see the way, the path, of rectitude, the guidance that has come from Allah, do not adopt it as a way, to follow,
and if they see the way of error, misguidance, adopt it as a way.
That, turning of them away, is because they have denied Our signs and were heedless of them.
A similar statement has been made above.
In other words, Allah said:
I shall turn away believing in My revelations those who magnify themselves wrongfully without any right
it is also said that this means: I will show you, O Muhammad, the abode of evil-doers
it is also said that it refers to who see each token and do not believe, and if they see the way of righteousness the way of Islam and goodness they do not choose it for their way; they would not consider it a way,
and if they see the way of error, the way of disbelief and idolatry they choose it for their way.
Why Allah turns them away? Because they deny His revelations, His Scripture and His Messengers and they are used to disregard them, disbelieving in them.
===========
Verses 7:145-146 in different English translations of the meanings of Arabic Quran:
Verse 7:145
QARIB: we inscribed for him upon the tablets all kinds of exhortation and clear explanations of all things. so take it forcefully, and order your nation to take what is best of it. i shall show you the home of the wicked.
SHAKIR: and we ordained for him in the tablets admonition of every kind and clear explanation of all things; so take hold of them with firmness and enjoin your people to take hold of what is best thereof; i will show you the abode of the transgressors
PICKTHAL: and we wrote for him, upon the tablets, the lesson to be drawn from all things and the explanation of all things, then (bade him): hold it fast; and command thy people (saying): take the better (course made clear) therein. i shall show thee the abode of evil-livers.
YUSUFALI: and we ordained laws for him in the tablets in all matters, both commanding and explaining all things, (and said): “take and hold these with firmness, and enjoin thy people to hold fast by the best in the precepts: soon shall i show you the homes of the wicked,- (how they lie desolate).”
Verse 7:146
QARIB: from my signs i will turn away the unrightfully, arrogant in the land, so that even if they witness every sign they would not believe it. if they see the path of righteousness, they shall not take it as a path; but if they see the path of error, they shall take it for their path because they belied our signs and were inattentive towards them.
SHAKIR: i will turn away from my communications those who are unjustly proud in the earth; and if they see every sign they will not believe in it; and if they see the way of rectitude they do not take it for a way, and if they see the way of error. they take it for a way; this is because they rejected our communications and were heedless of them
PICKTHAL: i shall turn away from my revelations those who magnify themselves wrongfully in the earth, and if they see each token believe it not, and if they see the way of righteousness choose it nor for (their) way, and if they see the way of error choose if for (their) way. that is because they deny our revelations and are used to disregard them.
YUSUFALI: those who behave arrogantly on the earth in defiance of right – them will i turn away from my signs: even if they see all the signs, they will not believe in them; and if they see the way of right conduct, they will not adopt it as the way; but if they see the way of error, that is the way they will adopt. for they have rejected our signs, and failed to take warning from them.
Co-Chief editor, October Weekly magazine, Cairo, Egypt.
By Law Article
July 16th, 2009 at 04:38pm
Under Family Law
In the event of a divorce between two parents, the welfare of the children is a predominant concern for the court. One of the issues that must be decided in these situations is the custody of the children, or who they will live with. The other issue is child support; the financial support that is required to raise and care for these children.
When matters like child support are being decided, it helps to have an experience Irvine family law attorney at work on the case. Decisions of child support often follow a complex formula that will take into consideration the parent that the child lives with and the parent with the highest income level. If that person is self-employed, determining income and child support amounts can be even more complicated. A competent lawyer can help parents wade through the complex formulas and guidelines to come to a child support amount that everyone can agree on.
When agreements don’t happen easily, an Irvine family law attorney will work for the interests of the children and custodial parent to ensure a fair amount of child support will be paid. By the same token, the non-custodial parent often needs a lawyer in his corner to ensure that the payment required is fair and affordable. If circumstances in that parent’s life change and child support payments cannot be made, that same lawyer can file for a modification to the agreement to take this change into consideration.
Once an agreement is reached, the custodial parent will be counting on the fact that payments will be made on time and in full every month. If the checks do not come in a timely fashion, an experienced Irvine family law attorney can file the proper paperwork with the court to ensure that payments begin again or back payments are made with the appropriate interest charges included. In California, the rate on late child support payments is 10%, and there is no statute of limitations on that money. A competent lawyer will make sure those payments are resumed quickly and correctly.
In some cases, the court will work to set up a system where child support payments are taken directly from the non-custodial parent’s paycheck. This will ensure that payments are sent on time, every time. If payments still become delinquent, there are other measures that an attorney can take to ensure payments resume as soon as possible. These might include seizing assets like property or withholding the amount out of a tax refund. The key in collecting this money will be to find an experienced Irvine family law attorney who is able to work through the system to get the necessary compensation to those who need it most.
Child support can be a sticky issue in the divorce proceedings. The good news is that the law protects both parties in this situation to ensure a fair deal. Whether you are trying to collect child support payments from a reluctant spouse or needing to modify the support agreement in any way, an experienced Irvine family law attorney can ensure the moves swiftly and smoothly.
By Law Article
July 16th, 2009 at 10:11am
Under Employment Law
Several tips and pitfalls for employers regarding offering and moving employees to new jobs as an alternative to making staff redundant. Employment Law Training offers UK businesses the full picture of options when axing staff looms.
Employers facing a round of tough redundancies should consider offering staff alternative jobs instead.
In today’s increasingly competitive marketplace, some employers may well find they face tough decisions, with the harsh reality being that they have no option but to make some of their workers redundant.
This is obviously a difficult situation, but one which more and more companies are faced with as the economy struggles to cope on the verge of a possible recession.
But have you considered all the options – don’t just jump in straight away and take the drastic step of axing staff without exploring every other possible approach.
Could you for instance minimise the impact of your difficult position by finding alternative roles for those staff within your organisation instead? It may take time to work this out and solve the jigsaw puzzle of moving people around between different departments, but it could be well worth the patience and effort.
This approach though may seem to be the perfect solution, and could save you from the dreaded redundancy announcement.
But employers need to make sure they stay on the right side of the Employment Rights Act 1996 when it comes to managing the process.
You don’t want to find that simply by trying to help your employees, you are contravening the rules and getting your company into trouble.
The Employment Appeal Tribunal has also set out new guidelines to explain how you should manage the offer of an alternative job and there are definitely pitfalls you need to avoid.
Employers should offer the person a trial period in the new potential job, usually four weeks is the right kind of timescale as it will give you, and them, the chance to carefully assess whether it’s a suitable move.
Communicate clearly to the employees involved how the trial period for an alternative job will operate, right from the start – don’t leave them in any doubt about where they stand.
Ensure they know that if they want to turn down the new job, they must do it within the four-week period, because if they don’t, and the four-week deadline passes without a formal decision, they could forfeit their right to a statutory redundancy payment.
Make sure too that any proposed alternative employment is actually suitable for the employee involved, and not just a position where you happen to have a vacancy.
Offering your staff a job which you know will be beyond their skills or totally out of their remit could put you at risk of an unfair dismissal claim.
It’s completely understandable that bosses should want to try to help their staff, particularly if they’ve been with your company a long time, but make sure you’re operating within the guidelines, and that an alternative job offer really is appropriate.
You don’t want to make a difficult situation even worse by raising their hopes of avoiding the axe with a possible new job offer, only to find that it’s not right for you or them, and they are faced with being made redundant after all.This article is free to republish provided the authors resource box below remains intact.
By Law Article
July 16th, 2009 at 10:09am
Under Education Law
According to the Merriam-Webster dictionary the definition of
accreditation is “to recognize (an educational institution) as
maintaining standards that qualify the graduates for admission
to higher or more specialized institutions or for professional
practice.” Law schools generally fall into three catagories of
accreditation, American Bar Association (ABA) accredited, state
accredited or unaccredited.
ABA accreditation – According to the American Bar
Association, “Law schools approved by the American Bar
Association (ABA) provide a legal education which meets a
minimum set of standards as promulgated by the ABA. Every
jurisdiction in the United States has determined that graduates
of ABA-approved law schools are able to sit for the bar in their
respective jurisdictions. The role that the ABA plays as the
national accrediting body has enabled accreditation to become
unified and national in scope rather than fragmented, with the
potential for inconsistency, among the 50 states, the District
of Columbia, the Commonwealth of Puerto Rico, and other
territories. The Council of the ABA Section of Legal Education
and Admissions to the Bar is the United States Department of
Education recognized accrediting agency for programs that lead
to the first professional degree in law. The law school approval
process established by the Council is designed to provide a
careful and comprehensive evaluation of a law school and its
compliance with the Standards for Approval of Law Schools.”
State accreditation – Most states have their own
accreditation process and in most cases give accreditation
status to ABA accredited schools. However, there are many law
schools that for one reason or another do not meet all of the
ABA accredition requirements. Some of these schools, however, do
meet the states requirements. Note: State requirements can vary
by state. If a school meets state requirements it can apply to
that state for state accreditation.
Unaccredited – According to the California Bar
Association “An unaccredited law school is one operating as a
law school in the State of California that is neither accredited
nor approved by the Committee, but must be registered with the
Committee and comply with the requirements contained in Rules
XIX and XX of the Admission Rules, applicable provisions of the
California Rules of Court and relevant sections of the
California Business and Professions Code. A law school operating
wholly outside of California is unaccredited unless it has
applied for and received accreditation from the Committee or is
provisionally or fully approved by the American Bar
Association.” Rules in many other states are the same.
Most states require that you meet certain requirements
prior to being eligible to take their bar examination. The
California Bar states “To be eligible to take the California Bar
Examination, one must have completed at least two years of
college before beginning the study of law or must have passed
certain specified College Level Equivalency Program examinations
before beginning law study and must have graduated from a law
school approved by the American Bar Association or accredited by
the Committee of Bar Examiners of The State Bar of California or
have completed four years of law study at an unaccredited or
correspondence law school registered with the Committee or
studied law in a law office or judge’s chambers in accordance
with the Rules Regulating Admission to Practice Law in
California.” Most states have similar requirements.
The foregoing suggests that many states will not allow,
non ABA accredited out of state law school graduates to take
their bar examination, unless they attended school in that state
or a school that is certified by that state. Therefore students
graduating from non ABA accredited law schools may not be
allowed to practice in any state other than the state they
attended school. Note: Some states have reciprocal agreements
with other states allowing attorneys registered in one state to
become a member of the bar in another state without taking a bar
examination in the new state.
Notwithstanding the foregoing, there are many fine law
schools in this country that are not ABA accredited.
Additionally, many ABA accredited schools do not offer night
time or part time classes. Finally, there are many more
applicants that spaces available in ABA accredited schools,
forcing many good students to attend other schools. Therefore,
accreditation should not be your only criteria in choosing a law
school or in deceiding whether or not to hire a particular law
school graduate.
Permission is given to reprint this article providing credit is
given to the author, David G. Hallstrom, and a link is listed to
Resources For
Attorneys the owner of this article. Anyone or any company
reprinting this article without giving proper credit and the
correct link, is doing so without permission
By Law Article
July 16th, 2009 at 08:58am
Under Criminal Law
THE RAPE LAWS IN INDIA, revisiting the concepts .
Is ‘Rape’ merely a word described in section 375 of the Indian Penal Code, 1860, to be interpreted stricto senso? Or is it a psychological phenomenon to be understood and dealt with, with more empathy and less legality? What is the scope of this word and its narrow definition according to law and what is the impact of this definition on the judgments meted out to the hapless victims of this excruciating mental agony? This project aims to study the lacunas in the present definition and scope of the phenomenon called Rape.The word ‘Rape’ is derived from the Latin term ‘Rapio’, which means ‘to seize’. Thus, rape literally means a forcible seizure and that is the essential characteristic feature of the offence. In common parlance, it means intercourse without her consent by force, fear or fraud. In other words, rape is violation with violence of the private person of a woman.
Though the law is said to grant justice to the innocent, the same is sadly not true in case of rape victims. Justice prides herself on being blind to everything but the truth – yet as far as rape is concerned, the facts paint a different picture. Rape laws in India are extremely antiquated. Although the laws outline the crime in clear terms, the courts are filled with people who favor the accused and challenge the veracity of the victim’s allegation.
The Supreme Court has opined in Maharashtra v Madhukar Narayan Mardikar , that “..even a woman with easy virtue is entitled to privacy and no one can invade her privacy as and when he likes. So also, it is not open to any and every person to violate her person as and when he wishes. Therefore, merely because she is a woman of easy virtue, her evidence cannot be thrown overboard.”
Rape laws in India are antiquated; Instances where justice has failed the victim because of interpretation of law, assessment of evidence, long delays at the trial and harsh and humiliating cross-examination of the victim are reported with alarming frequency. This report deal with the incumbencies in the existing laws relating to rape in India and certain recent developments in this field.
Rape is a weapon that distorts a woman’s sexuality, restricts her freedom of movement and violates her human rights. It leaves a woman feeling exposed, humiliated and traumatised. A rapist not only violates the victim’s privacy and personal integrity, but also causes serious physical and psychological damage. The law must take a fresh look at itself and take positive steps to make it more difficult for an accused to get judicial reprieve. . What is sad about rape in India is the lack of seriousness with which the crime is often treated.Statistics from 2000 showed that on average a woman is raped every hour in India
As observed by Justice Arjit Pasayat:”While a murderer destroys the physical frame of the victim, a rapist degrades and defiles the soul of a helpless female.”Sexual harassment is nothing less than the showcasing of male dominance. Given an opportunity, such men (those committing sexual harassement) would try fulfilling their desire.
Rape
Rape means an unlawful intercourse done by a man with a woman without her valid consent. (Section 375 of the Indian Penal Code)A man is said to commit “rape” if he has sexual intercourse with a woman under circumstances falling under any of the six following descriptions :-
Against her will.
Without her consent.
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.
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.
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.
With or without her consent, when she is under sixteen years of age.
Explanation : Penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape.Exception : Sexual intercourse by a man with his own wife, the wife not being under fifteen years of age, is not rape.
Impediments to Justice:Rape is defined in India as intentional, unlawful sexual intercourse with a woman without her consent. The essential elements of this definition under Section 375 of the Indian Penal Code are ’sexual intercourse with a woman’ and the absence of consent. This definition therefore does not include acts of forced oral sex, or sodomy, or penetration by foreign objects; instead those actions are criminalized under Section 354 of the IPC, which deals with ‘criminal assault on a woman with intent to outrage her modesty’ and Section 377 IPC, covering ‘carnal intercourse against the order of nature’.
The definition leaves a few questions unanswered. For instance, what about sexual intercourse by a man with his wife, and without her consent, where the wife is over 16 years of age? Judicial interpretation has also meant that sexual intercourse in a custodial situation (police station, public hospital, remand homes, and jails) is deemed an offence, without going into the question of consent. Also, anal or oral penetration and penetration with objects do not fall within the ambit of section 375.
It also does not recognize other forms of sexual assaults, like protracted sexual assault by relatives, marital rape etc. as aggravated forms of rape. This causes grave injustice to many victims. In many cases of child rape, the child has been penetrated through fingers or by objects or been force to perform oral or anal sex; yet this is not considered rape by the Courts.
Also, if the victim is a minor, the onus is on the accused to prove his innocence. But if the victim is a major, it is up to her to prove her charge. Therefore, the defence finds it worthwhile to prove that the victim is a major. Another problem is that unless the woman is examined medically within 24 hours, it becomes difficult forensically to prove that rape has occurred. Very often, unable to prove penetration, judges find themselves trying “rape” cases under more watered down sections: ‘outraging the modesty of a woman’, for instance, carrying much lighter punishment.
Adding to this is Section. 155(4) of the Evidence Act (Repealed), which allows the victim to be questioned of her past sexual history which the defense uses to humiliate the victim in the Courtroom. At the same time, section 54 stated: “In criminal proceedings (including rape) the fact that the accused person has a bad character is irrelevant, unless evidence has been given (by him) that he has a good character, in which case it becomes relevant.”
Section 375 of the Indian Penal Code (IPC) only considers forced peno-vaginal penetration to be rape. Penetration with any other object, be it life-threatening (a knife, an iron rod, etc), though more physically harmful is not rape. The penis is accorded a privileged position in comparison with other objects that can be inserted, because of the primacy put on the virginity of women. The rupture of a woman’s hymen — the ultimate symbol of her sexual purity — must be avoided at all costs. “Sexual intercourse by a man with his own wife, the wife not being under 15 years of age, is not rape,” according to this section. In other words, forced sex within marriage is outside the scope of the offence of rape.
The manner in which some courts have interpreted the law or assessed the evidence has often proved to be an obstacle also. In spite of Supreme Court judgments to the contrary, lower court judges often insist on evidence of physical resistance or marks of injuries to hold that a woman has not consented. A woman’s evidence without corroboration is not considered sufficient.
Therefore rape laws in order to be of great deterrence, must have a cooperative victim, professional investigation, diligent prosecution; and an expeditious trial. For otherwise it shall not be the law, that fails, but the applicants, the process and application
Earlier Developments
Several difficulties with the rape law were highlighted through some insensitive treatment by the judiciary
· The Mathura rape case is illustrative.( TukaRam v. State of Maharashtra, AIR 1979 SC 185In March 1972, a 16-year-old tribal girl was raped by two policemen in the compound of Desai Ganj police chowky in Chandrapur district of Maharashtra. Her relatives, who had come to register a complaint, were patiently waiting outside even as this heinous act was being perpetrated in the police station. When her relatives and the crowd threatened to burn the police chowky down, the two guilty policemen, Ganpat and Tukaram, reluctantly agreed to file a panchnama. At the Sessions Court, Mathura was accused of being a “liar” and that since she was “habituated to sexual intercourse”, her consent was given. The Nagpur bench of the Bombay High Court set aside the judgment holding that that passive submission due to fear induced by serious threats could not be construed as willing sexual intercourse. However, the decision of the Supreme Court remains a blot on its record to this day. The rationale for acquittal was that Mathura had not raised an alarm and there were no visible marks of injury on her body. The judgment did not distinguish between consent and forcible submission
The Mathura rape case galvanised the women’s movement into asking for reforms of the criminal law that dealt with rape. In 1983, the government passed the Criminal Law Amendment Act. It amended Section 376 IPC and enhances the punishment of rape it also provides enhanced punishment of minimum of 10 years of imprisonment for police officers or staff of jail, the remand homes or other places of custody established by law. The Act further inserts a new Section 114-A IEA, by raising a presumption as to absence of consent in cases of custodial rape, rape on pregnant women and gang rape at least partially, removed the infirmity from the evidence of a victim of rape that was hitherto unjustly attached to her testimony without taking note of the fact that in India, unlike the occident a disclosure of the girls identity, rehabilitation in society for all times to come and unless her story was painfully true she would not have taken such a grave risk merely to malign the accused.The Act also provides for trial in camera. It also inserts a new section in the IPC Sec 228(A), which makes disclosure of the identity of the victims in These amendments were not enough to stem the rise in the number of cases of sexual violence against women. One crucial defect in the law was the definition of rape under Section 375 of the Indian Penal Code (IPC), which took into account only penile-vaginal penetration. Other physical and mental injuries were left to be dealt with under Sections 354 and 509 of the IPC as `outraging the modesty of a woman’.
Although the amendment had only partly accepted the demands of the campaign, the enactment was an indication of some measure of success. However, the inadequacy of these measures became clear in the Suman Rani case.[In spite of the rigorous punishment brought in through the amendment in cases of custodial rape, the Supreme Court reduced the sentence to five years on grounds that the woman was of ‘questionable character’ and ‘easy virtue’ with ‘lewd’ and ‘lascivious behaviour’. The court also dismissed a review petition filed by women’s groups. The Suman Rani case was no exception; the judiciary was routinely awarding less than the minimum sentence in rape trials despite the statutory mandate laid down by the amendment. In Mohd.Habib v. State, the Delhi High Court allowed a rapist to go scot-free merely because there were no marks of injury on his penis, which the High Court presumed was indicative of consent.
· In Mohd.Habib Vs State, the Delhi High Court allowed a rapist to go scot-free merely because there were no marks of injury on his penis- which the High Court presumed was a indication of no resistance. The most important facts such as the age of the victim (being seven years) and that she had suffered a ruptured hymen and the bite marks on her body were not considered by the High Court. Even the eye- witnesses who witnessed this ghastly act, could not sway the High Court’s judgment.
· In another instance of conscience stirring cases, Sakina- a poor sixteen year old girl from Kerala, who was lured to Ernakulam with the promise of finding her a good job, where she was sold and forced into prostitution. There for eighteen long months she was held captive and raped by clients. Finally she was rescued by the police- acting on a complaint filed by her neighbour.With the help of her parents and an Advocate, Sakina filed a suit in the High Court- giving the names of the upper echelons of the bureaucracy and society of Kerala.The suit was squashed by the High Court, while observing that ‘ it is improbable to believe that a man who desired sex on payment would go to a reluctant woman; and that the version of the victim was not so sacrosanct as to be taken for granted.’
· Whereas, in State of Punjab Vs. Gurmit Singh, the Supreme Court has advised the lower judiciary, that even if the victim girl is shown to be habituated to sex, the Court should not describe her to be of loose character.
· The Supreme Court has in the case of State of Maharashtra Vs. Madhukar N. Mardikar, held that "the unchastity of a woman does not make her open to any and every person to violate her person as and when he wishes. She is entitled to protect her person if there is an attempt to violate her person against her wish. She is equally entitled to the protection of law. Therefore merely because she is of easy virtue, her evidence cannot be thrown overboard."
In Chairman, Railway Board Vs. Chandrima Das, a practicing Advocate of the Calcutta High Court filed a petition under Article.226 of the Constitution of India against the various railway authorities of the eastern railway claiming compensation for the victim (Smt. Hanufa Khatoon)- a Bangladesh national- who was raped at the Howrah Station, by the railway security men. The High Court awarded Rs.10 lacs as compensation.
The Supreme Court also held that the relief can be granted to the victim for two reasons- firstly, on the ground of domestic jurisprudence based on the Constitutional provisions; and secondly, on the ground of Human Rights Jurisprudence based on the Universal Declaration of Human Rights, 1948 which has international recognition as the ‘Moral Code of Conduct’- adopted by the General Assembly of the United Nation.
In view of the above, the Supreme Court has laid down the following guidelines for the trial of rape cases:
1.The complaints of sexual assault cases should be provided with legal representation. Such a person should be well acquainted.
2. Legal assistance should be provided at the police Station, since the victim may be in a distressed state.
3. The police should be under a duty to inform the victim of her right to a counsel before being interrogated.
4. A list of lawyers willing to act in these cases should be kept at the police station.
5. Advocates shall be appointed by the Court on an application by the police at the earliest, but in order that the victim is not questioned without one, the Advocate shall be authorized to act at the police Station before leave of the Court is sought or obtained.
6. In all rape trials, anonymity of the victim must be maintained
7. It is necessary to setup Criminal Injuries Compensation Board with regard to the Directive Principles contained under Article. 38(1) of the Constitution of India. As some victims also incur Substantial losses.
8. Compensation for the victims shall be awarded by the Court on the conviction of the offender and by the Criminal Injuries Compensation Board- whether or not a conviction has taken place. The Board will take into account pain, suffering, shock as well as loss of earnings due to pregnancy and child birth if this accrued as a result of rape.
Recent Developments
In 1997, Sakshi, an organisation involved in issues on women and children, approached the Supreme Court through a writ petition asking for directions concerning the definition of rape in the IPC. Although the Supreme Court did not interpret the provisions of Section 375 IPC to include all forms of penetration such as penile/vaginal penetration, penile/oral penetration, penile/anal penetration, finger/vagina penetration, finger/anal penetration, and object/vaginal penetration within its ambit. Instead, the judges sought refuge behind the strict interpretation of penal statutes and the doctrine of state decisis - a view that any alteration [in this case, of the definition of rape] would result in chaos and confusion, it directed the Law Commission of India to respond to the issues raised in the petition. The Law Commission, under the chairmanship of Justice P. Jeevan Reddy, responded by saying that the 156th Law Commission Report had dealt with these issues. The Supreme Court, however, agreed with Sakshi that the 156th Report did not deal with the precise issues raised in the writ petition. In August 1999, it directed the Law Commission to look into these issues afresh. (Sakshi v. Union of India)
After detailed consultations with the organisations, the Law Commission released its 172nd Report on the Review of Rape Laws, in 2000. The Law Commission recommended changing the focus from rape to `sexual assault’, the definition of which goes beyond penile penetration to include penetration by any part of the body and objects, taking into account cunnilingus and fellatio.
The report recommended the deletion of Section 155(4) of the Indian Evidence Act, which would prevent a victim of rape from being cross-examined about her `general immoral character’ and sexual history. It suggested graded sentences, with higher punishment for rape committed by the relatives and persons in `trust or authority’, public servants, and superintendents, management and staff of hospitals. It introduced a new Section 376(E), which would include sexual harassment at the workplace.
The commission recommended shifting the burden of proof of consent to the accused. It suggested specific provisions that would deal with the medical examination of the victim as well as the accused by a registered medical practitioner. It said that girls who are victims of rape should be questioned only by a female police officer, in the absence of whom a qualified woman from a recognised social organisation should do the questioning. The commission suggested that the law relating to sexual assault be made gender neutral, that is, men and women can be charged with the rape of men, women and children. This meant that for the first time the sexual assault of minor boys was made prosecutable under the law. It asked for Section 377 of the IPC to be dropped, thus decriminalising sodomy.
However, the recommendations did not take into account marital rape. It raised the age of consent of the wife from 15 to 16 years, after which the woman is not protected from rape by the husband. It also continues to provide a window for Judges to reduce the sentence in case of convictions below the minimum sentence specified, as suggested by the commission which states: “Any number of situations may arise, which the Commission cannot foresee th Based on the Law Commission’s recommendations, the government enacted an amendment in the winter session of Parliament in 2002, which deleted Section 155(4) and inserted a proviso to Section 146 of the Indian Evidence Act, which means that a victim of rape can no longer be questioned about her past sexual conduct and her `general immoral character’..
Criminal Law Amendment Bill of 2005
The Bill, drafted by Ms Kirti Singh advocate and legal convener of AIDWA, is based on 172nd report of the Law Commission to amend the laws relating to sexual assault in Section 375, 376, 354 and 509 IPC and the relevant sections of the Code of Criminal Procedure 1973 and the Indian Evidence Act 1872. The recommendations are based on the national consultation on the issue organized by the national commission for women
· The major changes sought to be brought about through this amendment are substitution of existing section 375 of the IPC with the following:
“375.Sexual Assault: Sexual assault means –(a) The introduction (to any extent) by a man of his penis, into the vagina (which term shall include the labia majora), the anus or urethra or mouth of any woman or child–(b) the introduction to any extent by a man of an object or a part of the body (other than the penis) into the vagina(which term shall include the labia majora) or anus or urethra of a woman(c) the introduction to any extent by a person of an object or a part of the body (other than the penis) into the vagina(which term shall include the labia majora) or anus or urethra of a child.(d) manipulating any part of the body of a child so as to cause penetration of the vagina (which term shall include labia majora) anus or the urethra of the offender by any part of the child’s body;”
Similarly, Amendment, 2005 brought forth many changes in rape laws, especially related to detailed procedure of examination of victim and accused both by inserting new sections: 164-A, 174 (1A), (b), and 53-A (a) CrPC, and made it clear that in addition to physical examination, it also shall include the examination of blood, blood stains, semen, swabs in case of sexual offences, sputum and sweat, hair samples and finger nail clippings by the use of modern and scientific techniques including DNA profiling and such other tests which the RMP thinks necessary in a particular case. Section 174 (1A), (b), CrPC inserted to make mandatory inquiry by the Judicial Magistrate in cases of custodial rape and murder cases.
By Law Article
July 16th, 2009 at 08:58am
Under Criminal Law
THE RAPE LAWS IN INDIA, revisiting the concepts .
Is ‘Rape’ merely a word described in section 375 of the Indian Penal Code, 1860, to be interpreted stricto senso? Or is it a psychological phenomenon to be understood and dealt with, with more empathy and less legality? What is the scope of this word and its narrow definition according to law and what is the impact of this definition on the judgments meted out to the hapless victims of this excruciating mental agony? This project aims to study the lacunas in the present definition and scope of the phenomenon called Rape.The word ‘Rape’ is derived from the Latin term ‘Rapio’, which means ‘to seize’. Thus, rape literally means a forcible seizure and that is the essential characteristic feature of the offence. In common parlance, it means intercourse without her consent by force, fear or fraud. In other words, rape is violation with violence of the private person of a woman.
Though the law is said to grant justice to the innocent, the same is sadly not true in case of rape victims. Justice prides herself on being blind to everything but the truth – yet as far as rape is concerned, the facts paint a different picture. Rape laws in India are extremely antiquated. Although the laws outline the crime in clear terms, the courts are filled with people who favor the accused and challenge the veracity of the victim’s allegation.
The Supreme Court has opined in Maharashtra v Madhukar Narayan Mardikar , that “..even a woman with easy virtue is entitled to privacy and no one can invade her privacy as and when he likes. So also, it is not open to any and every person to violate her person as and when he wishes. Therefore, merely because she is a woman of easy virtue, her evidence cannot be thrown overboard.”
Rape laws in India are antiquated; Instances where justice has failed the victim because of interpretation of law, assessment of evidence, long delays at the trial and harsh and humiliating cross-examination of the victim are reported with alarming frequency. This report deal with the incumbencies in the existing laws relating to rape in India and certain recent developments in this field.
Rape is a weapon that distorts a woman’s sexuality, restricts her freedom of movement and violates her human rights. It leaves a woman feeling exposed, humiliated and traumatised. A rapist not only violates the victim’s privacy and personal integrity, but also causes serious physical and psychological damage. The law must take a fresh look at itself and take positive steps to make it more difficult for an accused to get judicial reprieve. . What is sad about rape in India is the lack of seriousness with which the crime is often treated.Statistics from 2000 showed that on average a woman is raped every hour in India
As observed by Justice Arjit Pasayat:”While a murderer destroys the physical frame of the victim, a rapist degrades and defiles the soul of a helpless female.”Sexual harassment is nothing less than the showcasing of male dominance. Given an opportunity, such men (those committing sexual harassement) would try fulfilling their desire.
Rape
Rape means an unlawful intercourse done by a man with a woman without her valid consent. (Section 375 of the Indian Penal Code)A man is said to commit “rape” if he has sexual intercourse with a woman under circumstances falling under any of the six following descriptions :-
Against her will.
Without her consent.
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.
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.
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.
With or without her consent, when she is under sixteen years of age.
Explanation : Penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape.Exception : Sexual intercourse by a man with his own wife, the wife not being under fifteen years of age, is not rape.
Impediments to Justice:Rape is defined in India as intentional, unlawful sexual intercourse with a woman without her consent. The essential elements of this definition under Section 375 of the Indian Penal Code are ’sexual intercourse with a woman’ and the absence of consent. This definition therefore does not include acts of forced oral sex, or sodomy, or penetration by foreign objects; instead those actions are criminalized under Section 354 of the IPC, which deals with ‘criminal assault on a woman with intent to outrage her modesty’ and Section 377 IPC, covering ‘carnal intercourse against the order of nature’.
The definition leaves a few questions unanswered. For instance, what about sexual intercourse by a man with his wife, and without her consent, where the wife is over 16 years of age? Judicial interpretation has also meant that sexual intercourse in a custodial situation (police station, public hospital, remand homes, and jails) is deemed an offence, without going into the question of consent. Also, anal or oral penetration and penetration with objects do not fall within the ambit of section 375.
It also does not recognize other forms of sexual assaults, like protracted sexual assault by relatives, marital rape etc. as aggravated forms of rape. This causes grave injustice to many victims. In many cases of child rape, the child has been penetrated through fingers or by objects or been force to perform oral or anal sex; yet this is not considered rape by the Courts.
Also, if the victim is a minor, the onus is on the accused to prove his innocence. But if the victim is a major, it is up to her to prove her charge. Therefore, the defence finds it worthwhile to prove that the victim is a major. Another problem is that unless the woman is examined medically within 24 hours, it becomes difficult forensically to prove that rape has occurred. Very often, unable to prove penetration, judges find themselves trying “rape” cases under more watered down sections: ‘outraging the modesty of a woman’, for instance, carrying much lighter punishment.
Adding to this is Section. 155(4) of the Evidence Act (Repealed), which allows the victim to be questioned of her past sexual history which the defense uses to humiliate the victim in the Courtroom. At the same time, section 54 stated: “In criminal proceedings (including rape) the fact that the accused person has a bad character is irrelevant, unless evidence has been given (by him) that he has a good character, in which case it becomes relevant.”
Section 375 of the Indian Penal Code (IPC) only considers forced peno-vaginal penetration to be rape. Penetration with any other object, be it life-threatening (a knife, an iron rod, etc), though more physically harmful is not rape. The penis is accorded a privileged position in comparison with other objects that can be inserted, because of the primacy put on the virginity of women. The rupture of a woman’s hymen — the ultimate symbol of her sexual purity — must be avoided at all costs. “Sexual intercourse by a man with his own wife, the wife not being under 15 years of age, is not rape,” according to this section. In other words, forced sex within marriage is outside the scope of the offence of rape.
The manner in which some courts have interpreted the law or assessed the evidence has often proved to be an obstacle also. In spite of Supreme Court judgments to the contrary, lower court judges often insist on evidence of physical resistance or marks of injuries to hold that a woman has not consented. A woman’s evidence without corroboration is not considered sufficient.
Therefore rape laws in order to be of great deterrence, must have a cooperative victim, professional investigation, diligent prosecution; and an expeditious trial. For otherwise it shall not be the law, that fails, but the applicants, the process and application
Earlier Developments
Several difficulties with the rape law were highlighted through some insensitive treatment by the judiciary
· The Mathura rape case is illustrative.( TukaRam v. State of Maharashtra, AIR 1979 SC 185In March 1972, a 16-year-old tribal girl was raped by two policemen in the compound of Desai Ganj police chowky in Chandrapur district of Maharashtra. Her relatives, who had come to register a complaint, were patiently waiting outside even as this heinous act was being perpetrated in the police station. When her relatives and the crowd threatened to burn the police chowky down, the two guilty policemen, Ganpat and Tukaram, reluctantly agreed to file a panchnama. At the Sessions Court, Mathura was accused of being a “liar” and that since she was “habituated to sexual intercourse”, her consent was given. The Nagpur bench of the Bombay High Court set aside the judgment holding that that passive submission due to fear induced by serious threats could not be construed as willing sexual intercourse. However, the decision of the Supreme Court remains a blot on its record to this day. The rationale for acquittal was that Mathura had not raised an alarm and there were no visible marks of injury on her body. The judgment did not distinguish between consent and forcible submission
The Mathura rape case galvanised the women’s movement into asking for reforms of the criminal law that dealt with rape. In 1983, the government passed the Criminal Law Amendment Act. It amended Section 376 IPC and enhances the punishment of rape it also provides enhanced punishment of minimum of 10 years of imprisonment for police officers or staff of jail, the remand homes or other places of custody established by law. The Act further inserts a new Section 114-A IEA, by raising a presumption as to absence of consent in cases of custodial rape, rape on pregnant women and gang rape at least partially, removed the infirmity from the evidence of a victim of rape that was hitherto unjustly attached to her testimony without taking note of the fact that in India, unlike the occident a disclosure of the girls identity, rehabilitation in society for all times to come and unless her story was painfully true she would not have taken such a grave risk merely to malign the accused.The Act also provides for trial in camera. It also inserts a new section in the IPC Sec 228(A), which makes disclosure of the identity of the victims in These amendments were not enough to stem the rise in the number of cases of sexual violence against women. One crucial defect in the law was the definition of rape under Section 375 of the Indian Penal Code (IPC), which took into account only penile-vaginal penetration. Other physical and mental injuries were left to be dealt with under Sections 354 and 509 of the IPC as `outraging the modesty of a woman’.
Although the amendment had only partly accepted the demands of the campaign, the enactment was an indication of some measure of success. However, the inadequacy of these measures became clear in the Suman Rani case.[In spite of the rigorous punishment brought in through the amendment in cases of custodial rape, the Supreme Court reduced the sentence to five years on grounds that the woman was of ‘questionable character’ and ‘easy virtue’ with ‘lewd’ and ‘lascivious behaviour’. The court also dismissed a review petition filed by women’s groups. The Suman Rani case was no exception; the judiciary was routinely awarding less than the minimum sentence in rape trials despite the statutory mandate laid down by the amendment. In Mohd.Habib v. State, the Delhi High Court allowed a rapist to go scot-free merely because there were no marks of injury on his penis, which the High Court presumed was indicative of consent.
· In Mohd.Habib Vs State, the Delhi High Court allowed a rapist to go scot-free merely because there were no marks of injury on his penis- which the High Court presumed was a indication of no resistance. The most important facts such as the age of the victim (being seven years) and that she had suffered a ruptured hymen and the bite marks on her body were not considered by the High Court. Even the eye- witnesses who witnessed this ghastly act, could not sway the High Court’s judgment.
· In another instance of conscience stirring cases, Sakina- a poor sixteen year old girl from Kerala, who was lured to Ernakulam with the promise of finding her a good job, where she was sold and forced into prostitution. There for eighteen long months she was held captive and raped by clients. Finally she was rescued by the police- acting on a complaint filed by her neighbour.With the help of her parents and an Advocate, Sakina filed a suit in the High Court- giving the names of the upper echelons of the bureaucracy and society of Kerala.The suit was squashed by the High Court, while observing that ‘ it is improbable to believe that a man who desired sex on payment would go to a reluctant woman; and that the version of the victim was not so sacrosanct as to be taken for granted.’
· Whereas, in State of Punjab Vs. Gurmit Singh, the Supreme Court has advised the lower judiciary, that even if the victim girl is shown to be habituated to sex, the Court should not describe her to be of loose character.
· The Supreme Court has in the case of State of Maharashtra Vs. Madhukar N. Mardikar, held that "the unchastity of a woman does not make her open to any and every person to violate her person as and when he wishes. She is entitled to protect her person if there is an attempt to violate her person against her wish. She is equally entitled to the protection of law. Therefore merely because she is of easy virtue, her evidence cannot be thrown overboard."
In Chairman, Railway Board Vs. Chandrima Das, a practicing Advocate of the Calcutta High Court filed a petition under Article.226 of the Constitution of India against the various railway authorities of the eastern railway claiming compensation for the victim (Smt. Hanufa Khatoon)- a Bangladesh national- who was raped at the Howrah Station, by the railway security men. The High Court awarded Rs.10 lacs as compensation.
The Supreme Court also held that the relief can be granted to the victim for two reasons- firstly, on the ground of domestic jurisprudence based on the Constitutional provisions; and secondly, on the ground of Human Rights Jurisprudence based on the Universal Declaration of Human Rights, 1948 which has international recognition as the ‘Moral Code of Conduct’- adopted by the General Assembly of the United Nation.
In view of the above, the Supreme Court has laid down the following guidelines for the trial of rape cases:
1.The complaints of sexual assault cases should be provided with legal representation. Such a person should be well acquainted.
2. Legal assistance should be provided at the police Station, since the victim may be in a distressed state.
3. The police should be under a duty to inform the victim of her right to a counsel before being interrogated.
4. A list of lawyers willing to act in these cases should be kept at the police station.
5. Advocates shall be appointed by the Court on an application by the police at the earliest, but in order that the victim is not questioned without one, the Advocate shall be authorized to act at the police Station before leave of the Court is sought or obtained.
6. In all rape trials, anonymity of the victim must be maintained
7. It is necessary to setup Criminal Injuries Compensation Board with regard to the Directive Principles contained under Article. 38(1) of the Constitution of India. As some victims also incur Substantial losses.
8. Compensation for the victims shall be awarded by the Court on the conviction of the offender and by the Criminal Injuries Compensation Board- whether or not a conviction has taken place. The Board will take into account pain, suffering, shock as well as loss of earnings due to pregnancy and child birth if this accrued as a result of rape.
Recent Developments
In 1997, Sakshi, an organisation involved in issues on women and children, approached the Supreme Court through a writ petition asking for directions concerning the definition of rape in the IPC. Although the Supreme Court did not interpret the provisions of Section 375 IPC to include all forms of penetration such as penile/vaginal penetration, penile/oral penetration, penile/anal penetration, finger/vagina penetration, finger/anal penetration, and object/vaginal penetration within its ambit. Instead, the judges sought refuge behind the strict interpretation of penal statutes and the doctrine of state decisis - a view that any alteration [in this case, of the definition of rape] would result in chaos and confusion, it directed the Law Commission of India to respond to the issues raised in the petition. The Law Commission, under the chairmanship of Justice P. Jeevan Reddy, responded by saying that the 156th Law Commission Report had dealt with these issues. The Supreme Court, however, agreed with Sakshi that the 156th Report did not deal with the precise issues raised in the writ petition. In August 1999, it directed the Law Commission to look into these issues afresh. (Sakshi v. Union of India)
After detailed consultations with the organisations, the Law Commission released its 172nd Report on the Review of Rape Laws, in 2000. The Law Commission recommended changing the focus from rape to `sexual assault’, the definition of which goes beyond penile penetration to include penetration by any part of the body and objects, taking into account cunnilingus and fellatio.
The report recommended the deletion of Section 155(4) of the Indian Evidence Act, which would prevent a victim of rape from being cross-examined about her `general immoral character’ and sexual history. It suggested graded sentences, with higher punishment for rape committed by the relatives and persons in `trust or authority’, public servants, and superintendents, management and staff of hospitals. It introduced a new Section 376(E), which would include sexual harassment at the workplace.
The commission recommended shifting the burden of proof of consent to the accused. It suggested specific provisions that would deal with the medical examination of the victim as well as the accused by a registered medical practitioner. It said that girls who are victims of rape should be questioned only by a female police officer, in the absence of whom a qualified woman from a recognised social organisation should do the questioning. The commission suggested that the law relating to sexual assault be made gender neutral, that is, men and women can be charged with the rape of men, women and children. This meant that for the first time the sexual assault of minor boys was made prosecutable under the law. It asked for Section 377 of the IPC to be dropped, thus decriminalising sodomy.
However, the recommendations did not take into account marital rape. It raised the age of consent of the wife from 15 to 16 years, after which the woman is not protected from rape by the husband. It also continues to provide a window for Judges to reduce the sentence in case of convictions below the minimum sentence specified, as suggested by the commission which states: “Any number of situations may arise, which the Commission cannot foresee th Based on the Law Commission’s recommendations, the government enacted an amendment in the winter session of Parliament in 2002, which deleted Section 155(4) and inserted a proviso to Section 146 of the Indian Evidence Act, which means that a victim of rape can no longer be questioned about her past sexual conduct and her `general immoral character’..
Criminal Law Amendment Bill of 2005
The Bill, drafted by Ms Kirti Singh advocate and legal convener of AIDWA, is based on 172nd report of the Law Commission to amend the laws relating to sexual assault in Section 375, 376, 354 and 509 IPC and the relevant sections of the Code of Criminal Procedure 1973 and the Indian Evidence Act 1872. The recommendations are based on the national consultation on the issue organized by the national commission for women
· The major changes sought to be brought about through this amendment are substitution of existing section 375 of the IPC with the following:
“375.Sexual Assault: Sexual assault means –(a) The introduction (to any extent) by a man of his penis, into the vagina (which term shall include the labia majora), the anus or urethra or mouth of any woman or child–(b) the introduction to any extent by a man of an object or a part of the body (other than the penis) into the vagina(which term shall include the labia majora) or anus or urethra of a woman(c) the introduction to any extent by a person of an object or a part of the body (other than the penis) into the vagina(which term shall include the labia majora) or anus or urethra of a child.(d) manipulating any part of the body of a child so as to cause penetration of the vagina (which term shall include labia majora) anus or the urethra of the offender by any part of the child’s body;”
Similarly, Amendment, 2005 brought forth many changes in rape laws, especially related to detailed procedure of examination of victim and accused both by inserting new sections: 164-A, 174 (1A), (b), and 53-A (a) CrPC, and made it clear that in addition to physical examination, it also shall include the examination of blood, blood stains, semen, swabs in case of sexual offences, sputum and sweat, hair samples and finger nail clippings by the use of modern and scientific techniques including DNA profiling and such other tests which the RMP thinks necessary in a particular case. Section 174 (1A), (b), CrPC inserted to make mandatory inquiry by the Judicial Magistrate in cases of custodial rape and murder cases.
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