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#India – Live-in or marriage-like relationship neither a crime nor a sin: Supreme Court

Nov 28, 2013, 09.13 PM IST


The apex court said a legislation is required as it is the woman who invariably suffer because of breakdown of such relationship.

NEW DELHI: Live-in relationship is neither a crime nor a sin, the Supreme Court has held while asking Parliament to frame law for protection of women in such relationship and children born out of it.

The apex court said, unfortunately, there is no express statutory provision to regulate live-in relationships upon termination as these relationships are not in the nature of marriage and not recognised in law.

In the landmark judgement, a bench headed by Justice K S Radhakrishnan framed guidelines for bringing live-in relationship within the expression ‘relationship in the nature of marriage’ for protection of women from Domestic Violence Act.

“Parliament has to ponder over these issues, bring in proper legislation or make a proper amendment of the act, so that women and the children, born out of such kinds of relationships be protected, though those types of relationship might not be a relationship in the nature of a marriage,” the bench said.

“Live-in or marriage-like relationship is neither a crime nor a sin though socially unacceptable in this country. The decision to marry or not to marry or to have a heterosexual relationship is intensely personal,” the bench said, adding that various countries have started recognising such relationship.

The apex court said a legislation is required as it is the woman who invariably suffer because of breakdown of such relationship.

“We cannot, however, lose sight of the fact that inequities do exist in such relationships and on breaking down such relationship, the woman invariably is the sufferer,” it said, noting “Live-in relationship is a relationship which has not been socially accepted in India, unlike many other countries”.

The bench, however, said that legislature cannot promote pre-marital sex and people may express their opinion, for and against.

“Such relationship, it may be noted, may endure for a long time and can result pattern of dependency and vulnerability, and increasing number of such relationships, calls for adequate and effective protection, especially to the woman and children born out of that live-in-relationship. Legislature, of course, cannot promote pre-marital sex, though, at times, such relationships are intensively personal and people may express their opinion, for and against,” it said.

The bench, however, said that maintaining an adulterous relation would not come within the ambit of live-in relationship which is to be protected by law.

“Polygamy, that is a relationship or practice of having more than one wife or husband at the same time, or a relationship by way of a bigamous marriage that is marrying someone while already married to another and/or maintaining an adulterous relationship that is having voluntary sexual intercourse between a married person who is not one’s husband or wife, cannot be said to be a relationship in the nature of marriage,” it said.


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#India – Top Female Lawyer Criticizes Tehelka, Supreme Court

By Tripti Lahiri and Joanna Sugden

India’s top-ranking female government lawyer says the employers of two women in the news recently for leveling sexual-assault allegations against powerful men erred in not taking the accusations to the police. 

Indira Jaising, an additional solicitor general, told an audience Monday that complaints by an intern against a retired Supreme Court judge and by a female journalist against a magazine editor were allegations of crimes rather than issues of ethical lapses or simple misconduct. 

Both the magazine and the Supreme Court set up committees to investigate the allegations instead of handing them over to legal authorities. 

“Where the conduct amounts to a specific offense, it must be dealt with as a crime,” Ms. Jaising said at a conference reviewing treatment of women since last December’s brutal gang rape of a student on a Delhi bus. 

A spokesman for the Supreme Court said Tuesday he was not in a position to comment on Ms. Jaising’s remarks. Officials at Tehelka, the magazine where the female journalist worked, couldn’t be reached for comment Tuesday. 

Ms. Jaising, who represents the Indian government before the country’s Supreme Court, said that if laws are not effectively enforced, women will become disillusioned with the justice system and won’t pursue formal complaints. 

The female journalist on Monday resigned from Tehelka, complaining that its response to her complaint was inadequate. In an email to Tehelka managing editor Soma Chaudhury, the reporter said she was “deeply traumatized by the lack of support offered by the organization.” A copy of the email was reviewed by the Journal. 

The woman, who cannot be named in media accounts under Indian laws designed to protect the identities of rape victims, wrote: “Over the past years, we [at Telhelka] have collectively defended the rights of women…spoken out harshly against the culture of victim blame.” She was “shattered” to find the magazine resorting to “tactics of intimidation, character assassination and slander.” 

The editor she alleges assaulted her, Tarun Tejpal, told the Journal on Friday that he had stepped down temporarily from his job as head of the magazine.  In an email statement Mr. Tejpal said that he was resigning after “serious allegations cast” on him.

He added that he had “tried to do what was honorably demanded of me.” He also said: “Unfortunately as sometimes happens in life, the complete truth and the need to do the honorable thing can come into conflict.” He didn’t elaborate. 

In an earlier email to Ms. Chaudhury, which Ms. Chaudhury circulated to the Tehelka staff, Mr. Tejpal wrote that a “bad lapse of judgment, an awful misreading of the situation” had led to “an unfortunate incident that rails against all we believe in and fight for.” 

Neither Mr. Tejpal nor his lawyers responded to requests for comment Tuesday. 

Ms. Chaudhury, managing editor of Tehelka, did not respond to requests for comment Tuesday. In a televised interview last week, she said she did not regard it as her duty to take the matter to the police. 

Police opened an investigation into the journalist’s allegations last Thursday, following reports in Indian media that cited the letter of complaint she had sent to the magazine’s management. The next day they registered a rape investigation involving Mr. Tejpal. 

In response to allegations of abuse against a retired judge by a legal intern, the Supreme Court established a three-judge panel to investigate. The panel, which includes one woman, has yet to publish its findings. The name of the judge has not been made public. The intern, Stella James, told The Wall Street Journal that she didn’t pursue legal action because she “feared it would do more harm than good.” 

Women’s rights activists have criticized the composition of the Supreme Court inquiry committee. It “has no one outside judges, no one from the women’s movement, not even a woman lawyer,” said Kavita Krishnan, a leader of the left-wing All India Progressive Women’s Association. “I see it as setting a bad example, not a good example.”

A Supreme Court press liaison said the committee was continuing its inquiry, with a meeting scheduled for Tuesday afternoon. He declined to provide further comment.


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#India – Tejpal Test for People Like Us #Rape #Tehelka

“If the death penalty has to be awarded for a 19-year old, poor, illiterate and socially backward boy for committing gangrape, what should the corresponding punishment be for a father figure and the highest authority in the organisation, for finger penetrating a young colleague, as per the regime of stringent punishment?



Tehelka (Photo credit: Wikipedia)









When in a historical verdict in 1997, Justice J.S. Verma resorted to judicial law-mak ing, and laid down guidelines to prevent “sexual harassment at workplace“ (popularly referred to as the “Vishaka guidelines“), everyone thought it was a harmless ruling. No one ever really thought that it would come to bite our public intellectuals and custodians of law and justice, at the highest echelons of power. The private sector chose to pretend that they are not bound by it. Women journalists, while writing probing reports regarding non-compliance by state agencies, never turned the mirror inwards and questioned whether there was a policy in place internally. The news reports were exercises in one-upmanship. At times, an occasional journalist would narrate such incidents but would prefer to change her job than press charges and face the stigma.And worse, while judges of the High Courts and the Supreme Court pontificated on this issue, they did not care to reflect whether they too were bound by this ruling and did not put in place a policy which would bind them. The spotlight was turned only on the public sector and the educational institutions. The concerns of women’s groups about not setting up such committees at all workplaces, including media houses, legal chambers and judicial institutions, fell on deaf ears.

To our probing queries, some senior officials replied disdainfully, “We will see when a law comes into effect.“ The government dragged its feet for 16 long years, and finally enacted a law earlier this year, which is yet to be made enforceable as rules under it are not yet framed. So we are still governed by the famous “Vishaka guidelines“ regarding sexual harassment at the workplace.

A committee would be set up only when a woman dared to file a complaint against her boss, as is being done in the Tehelka case, to put a lid on the violation so that the news does not spill into the public domain and harm the reputation of the corporate or media house.

Even more important is to bring into focus the demand for a wide definition of rape and stringent punishment, after the brutal Delhi gangrape and murder. This as well as the Shakti Mills case involved lower-class, delinquent men, while the victims were from the middle class. It was conven from the middle class. It was conven ient to demand stringent punish ment. When an initial Bill was prepared, various groups were more concerned about what was excluded than under standing what was included and its implications. It never made anyone uneasy that one day the wide defi nition of rape as insertion of not just the penis but also the fingers and objects into body orifices, not just into the vagina, but also anus and urethra and mouth (oral sex) and the stringent punishment (a minimum of 10 years for all such violations by peo ple in power) would come to bite us, bite people close to us, the people we respect.

Now the time for the litmus test has come. The time has come to test these definitions and the stringent punishments. To test our commitment to equality before the law and equal protection of law, a basic and fundamental principle of our Constitution. Even the best of them seem to flounder as was the case with Shoma Chaudhary, managing editor and the second-in-command, known for her commitment to women’s rights, who failed to treat the complaint with the seriousness it deserved.

The sexual harassment of a law intern by a retired SC judge, a defender of hu-man rights, pre judge, a defender of hu-man rights, pre siding over compli cated cases involving cor volving corruption at the highest l e v e l , wh i c h almost brought the UPA government down (as reported by a news magazine). The so-called “drunken banter“ by none other than Tarun Tejpal, known for his string operations and probing journalism. Both these reputed persons might have been under a misconception that they are above the law, that the code of sexual ethics at workplace as stipulated by the Vishaka guidelines applied to them personally.

Worse, from their position of power, they did not think that women would ever have the courage to expose them.

But these incidents must make us realise how routinely it takes place everywhere -within corporate establishments, media houses, judges chambers, chambers of senior advocates, even within NGOs and within the chambers of progressive lawyers and human rights defenders. There are several law graduates who were forced to change their professions after they were scarred by such incidents.

Despite the public debate on the recent amendment to the rape laws brought into force in April 2013, several journalists as well as subject experts and activists have confided to me their own ignorance about the new definition and asked me for clarification as to finger penetration would now amount to rape? The answer has to be an emphatic yes.

In the case of Tejpal, it would amount to an aggravated form as he is a “person in authority“ warranting a minimum of 10 years of imprisonment which may extend to life imprisonment. There is no short cut here as there is his own admission of guilt, which has tightened the noose round his neck.

If the death penalty has to be awarded for a 19-year-old, for a poor, socially backward boy for committing gang rape, what should the corresponding punishment be for a father figure and the highest authority in the organisation, for finger penetrating a young colleague, as per the regime of stringent punishment? And what would be the “mitigating circumstances“ the court can consider in such a case?

A difficult question, the court must answer.

For the Supreme Court too this is a moment of reckoning to bring in transparency and accountability . The Supreme Court has chosen to ignore past sexual misconduct while selecting judges for the Supreme Court. It is also time the court sets up a machinery to deal with the sexual exploitation that takes place under its very nose and set up appropriate machinery for redressal.





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#India – Is Aadhaar constituional ? SC to all States #UID

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200 px (Photo credit: Wikipedia)


SC Seeks response of states for making Aadhaar mandatory for some schemes


The Supreme Court (SC) on Tuesday asked major states that have linked government services or welfare schemes to the Unique Identity (UID) number to also present their “justification” for using Aadhaar. The apex court was hearing a review petition, filed by the government, of its past order on the petition filed by retired judge of the Karnataka High Court K S Puttaswamy.

The SC had passed an interim order on September 23, stating that no one should suffer due to unavailability of Aadhaar. Later, some central ministries, three public sector undertakings requested a modification of the order, along with UID Authority of India (UIDAI). Several activists like Aruna Roy joined the petition against the Aadhaar over issues such as privacy.

Around 11 states, including Delhi, Jharkhand, Karnataka and Maharashtra, have made Aadhaar mandatory for availing some government services. While hearing the arguments put forward by senior advocate Shyam Divan, who was representing one of the petitioners, the court said the states should also implead in the matter. The next hearing is slated for December 10. At the end of the almost daylong hearing, Justice S A Bobde said the court is inclined to “modify” and “save” the scheme. However, the challenge is that UIDAI which is a current party to the case has made Aadhaar voluntary. However, it is the states which have made the use of Aadhaar mandatory and so the “stings remain.”

During the hearing, Divan presented before the court that UIDAI is “almost running a private show” and is collecting biometric – a sensitive personal information – without any statutory backing. He called the authority unconstitutional and evoked the privacy concerns involved with the project. The bench of judges, comprising B S Chauhan and Bobde, said the privacy arguments had to be made “keeping the harsh realities of life in mind”, as somebody who doesn’t have access to food and water may not be very much concerned about their privacy.

The next date of hearing may give a window of opportunity to the government to pass the National Identification Authority of India Bill, 2010 which will give UIDAI a legal backing. After being approved by the Cabinet, the Bill will be moved in Parliament during its winter session, which begins on December 5. This may dilute some of the arguments about the unconstitutionality of the authority.

Divan also said the Aadhaar project was based on untested and unproven technology and was being outsourced to private operators who could misuse the data by “duplicating and selling” it for commercial use.

While Solicitor General of India Mohan Parasaran said the allegations about misuse of data by private operators was incorrect, as there were enough checks and balances, the bench highlighted this issue needed to be addressed in detail when the government’s lawyers present their counter-agreements.




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#India – SC seeks States’ response on petitions challenging Aadhaar scheme #UID

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200 px (Photo credit: Wikipedia)

Biometric scanning of fingerprints in progress for Aadhaar enrolment, in Bangalore. File Photo K. Murali Kumar
‘The scheme is unconstitutional and infringes on the individual’s right to privacy
The Supreme Court on Tuesday issued notice to all the States asking for their response to a batch of petitions seeking a declaration that the Aadhaar scheme being implemented is unconstitutional.
A Bench comprising Justice B.S. Chauhan and Justice S.A. Bobde had already restrained the Centre from issuing Aadhaar cards to illegal immigrants, and had made it clear that benefits should not be denied to anyone for non-possession of Aadhaar cards.
On Tuesday, the Bench issued notice to the States during the final hearing of the petitions filed by K.S. Puttaswamy, retired Judge of Karnataka High Court, and others, who alleged that the scheme was unconstitutional as the individuals obtaining Aadhaar number were required to part with personal information, such as biometrics, iris and fingerprints, which infringed on their right to privacy – part of the fundamental right to life under Article 21 of the Constitution.
Arguments will continue on December 10 after getting response from States.
Obtaining personal information
Appearing for Mr. Puttaswamy, senior counsel Shyam Divan submitted that there were no safeguards or penalties and no legislative backing for obtaining personal information, and the proposed legislation introduced by the government has been rejected by the Parliamentary Standing Committee on Finance.
Counsel also said the UID project was destructive; that action under the project of collecting personal information, even where the individual voluntarily agreed to part with biometric information, was ultra vires.
Mr. Divan argued that any action of the State which could impinge on an individual’s freedom must be backed by statute and the procedure adopted by the government was arbitrary as there was no informed consent of the individual. No individual was told about potential misuse of information, the absence of any statutory protection, and the commercial value of the information collected, he submitted, adding that there was the possibility of the information being sold to foreign countries by the private parties.
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Sex CD forced Narendra Modi govt to tail woman, SC told


Nov 24, 2013, 01.05AM IST TNN[ Dhananjay Mahapatra ]

NEW DELHI: Suspended IAS officer Pradeep Sharma on Saturday put Narendra Modi right at the centre of the raging controversy over Gujarat government’s purported illegal surveillance on a woman by telling the Supreme Court that the young architect was subjected to hostile and intense scrutiny because the Gujarat CM was enamoured by her.In his petition to the SC seeking a CBI probe into the alleged violation of the woman’s right to privacy and the Indian Telegraph Act by Modi and his political aide Amit Shah, Sharma has alleged that he was suspended and framed in half a dozen cases between 2010 and 2012 because of Modi’s suspicion that he knew about the contents of a Video Compact Disc (VCD) allegedly showing the woman in a compromising position.

This is the first time BJP’s PM candidate has been directly accused of complicity in the “snoopgate“. The original charge was directed at Shah, with two investigating websites alleging that Modi’s confidant illegally directed police in 2009 to keep tabs on the woman because of the wishes of “saheb”.

He has dismissed as an afterthought the Gujarat government’s claim that the woman’s father had approached the Modi government to ensure her safety by keeping an eye on her, and said that the tapes of Shah’s purported conversation with police officer G L Singhal make it clear that she was victim of a hostile and intrusive scrutiny in violation of her right to privacy as well as the Indian Telegraph Act.

Claiming that he had introduced the architect from Bangalore, originally hailing from Bhuj in Gujarat, to Modi in 2004 when she was 27 years old.

“The applicant (Sharma) verily believes that Modi and the said female architect remained in touch with each other for next several years. There was also wide spread rumours regarding the Video Compact Disc (VCD) featuring the said female architect and a man in compromising position,” his application filed through advocate Sunil Fernandes stated.

“Sharma has no concern with this VCD, But, he believes that Modi harboured a totally misconceived apprehension that Sharma is the recipient of the information regarding this VDC, the contents of which if disclosed in public would be detrimental to the carefully constructed and publicized image of Modi and consequently damage his electoral prospects,” the suspended bureaucrat said.

“It is for this reason that a number of false and frivolous cases against the applicant herein were registerd with a view to implicate him and ‘punish him’,” he said.

Filing and bringing on the record of the Supreme Court transcripts of the entire footage telecast by websites ‘Cobrapost’ and ‘Gulail’, Sharma said the conversations between Shah, then minister of state for home in Gujarat, and G L Singhal, then SP in Anti-Terrorist Squad (ATS) in Ahmedabad, was during the period August-September 2009 when Singhal was reporting to Shah.

“The transcripts of the taped conversations reveal that the said lady architect and the applicant (Sharma) were placed under an all-pervasive and intrusive surveillance at the behest of a person referred to as ‘Saheb” by Amit Shah,” he said.

He alleged that the taped conversations revealed “severe and material violations” of the Indian telegraph Act, 1885, and an absolute disregard to the guidelines laid down by the Supreme Court in its December 18, 1996 judgment in the People’s Union for Civil Liberties case.

Terming the explanation that the ‘snooping’ on the woman was being done at her father’s behest as an ‘after thought”, Sharma said, “this explanation seems absolutely incredulous and unworthy of any belief in the light of the contents of conversations between Shah and Singhal, which reveal that the surveillance was extremely intrusive and hostile and not as innocuous and benign as sought to be made”.

The purported ‘no objection’ from the woman’s father did not absolve Modi, Shah and others of brazenly violating the law and the guidelines laid down by the apex court, he said and pleaded that the truth would be buried if the Gujarat Police investigated into the matter.

“It is important to note that the state intelligence bureau, the crime branch of Ahmedabad city police and the ATS were all involved in this illegal telephone interceptions and surveillance without having any role to play in the investigations relating to the case in hand,” Sharma said.

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#India – Law intern says she is being looked at with suspicion by SC panel #Vaw

NEW DELHI: A law intern, who has allegedsexual harassment by a recently-retired Supreme Court judge, feels she is being looked at with “suspicious eye” when she appears before the apex court‘s three-member probe panel.

She also said the reason for delay in coming out with the sexual harassment allegation was that she feels Indian law is “not equipped enough to sensitively deal with crimes against women”.

The website ‘Legally India’, which was the first to come out with her story, on Monday quoted her interview to Wall Street Journal in which she said it took her time to come to terms with the fact that she had been assaulted.

“When I finally did, all that I wanted to do was to erase the memory from my conscience. This was a man I had admired, I looked up to him.

“Indeed, I pondered over the idea of legal recourse, but feared it would do more harm than good. First, my case would have dragged on for years. Second, defence lawyers would make me relive every violating moment in court – something I wanted to bury at the time.

“Third, in cases of assaults, where there is no physical evidence, it’s one’s word against another’s, really. There’s no reason why a law graduate would have won over a judge with a spotless record. Even now, for instance, when I appear before the panel, I feel I’m being looked at with suspicious eye. I have to constantly justify that I’m not lying, I’m not making up this story. I feel humiliated,” the website quoted her.

She also said it was ironic that she, being a lawyer, “does not think Indian law, or our legal system for that matter, is equipped enough to sensitively deal with crimes against women”.

The law graduate, who first made public the allegation by writing her ordeal in a blog, said though she had not expected it to go viral, she was happy that it has caught national attention and triggered broader debates.

The intern said earlier there was guilt and shame attached to being raped and assaulted. The words were a taboo.

“Now, more and more people are questioning why they should put up with harassment – on the streets, in their homes, and at their workplaces. ‘Why should we bear with this? We haven’t done anything wrong,’ they say.”

The intern added that she had told her family about the harassment five months after the incident in May 2013 and they were also not keen to file a formal complaint.

“When I told my grandmother I was assaulted, she couldn’t understand why I was making a big deal out of it. In fact, she didn’t even think it was wrong. ‘We have all been harassed at some point or the other,’ she (grandmother) would say.

“My mother, meanwhile, said what had happened was indeed wrong, but that I had to accept it and move on. ‘You don’t have any other option,’ she (mother) would say,” the intern said.

  • #999; padding: 2px; display: block; border-radius: 2px; text-decoration: none;" href="" target="_blank"> #India- Why women remain silent #Vaw #mustread
  • #999; padding: 2px; display: block; border-radius: 2px; text-decoration: none;" href="" target="_blank"> #India – Sexual harassment at workplace: Women who dared to speak #Vaw
  • #999; padding: 2px; display: block; border-radius: 2px; text-decoration: none;" href="" target="_blank"> #India – Urvashi Butalia not heading Tehelka committee #Vaw


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#India – Supreme Court Judgment on Registration of FIR

 The Five  judge constitutional bench of SC on 12th Nov 13 in Lalita Kumari v State of UP and ors (WP (CRIMINAL) NO. 68 OF 2008) decided upon the issue: whether a police officer is bound to register a First Information Report (FIR) upon receiving any information relating to commission of a cognizable offence under section 154 of  the  Code  of Criminal Procedure, 1973 or the police officer has the power to conduct a “preliminary inquiry” in order to test  the  veracity of such information before registering the same?”

Through Para 111, SC has concluded and given the following directions:

111)  In view of the aforesaid discussion, we hold:

i) Registration of FIR is mandatory under Section 154 of the Code, if the information discloses commission of a cognizable offence and no preliminary inquiry is permissible in such a situation.

ii) If the information received does not disclose a cognizable  offence but indicates the necessity for an inquiry, a  preliminary  inquiry may be conducted only to ascertain whether  cognizable  offence  is disclosed or not.

iii)  If the inquiry discloses the commission of a  cognizable  offence, the FIR must be registered. In cases where preliminary inquiry ends in closing the complaint, a copy of the entry of such closure  must be supplied to the first informant forthwith and not later than one week.  It must disclose reasons in brief for closing the  complaint and not proceeding further.

iv) The police officer cannot avoid his duty of registering offence  if cognizable offence is  disclosed.  Action  must  be  taken  against erring officers who do not register the FIR if information received by him discloses a cognizable offence.

v) The scope of preliminary inquiry is not to verify the  veracity  or otherwise of the information received but only to ascertain whether the information reveals any cognizable offence.

vi) As to what type and in which cases preliminary  inquiry  is  to  be conducted will depend on the facts and circumstances of each  case.

The category of cases in which preliminary inquiry may be made  are as under:

a) Matrimonial disputes/ family disputes
b) Commercial offences
c) Medical negligence cases
d) Corruption cases
e)  Cases  where  there  is  abnormal  delay/laches  in  initiating criminal prosecution,  for  example,  over  3  months  delay  in reporting  the  matter  without  satisfactorily  explaining  the reasons for delay.

The aforesaid are only illustrations  and  not  exhaustive  of  all conditions which may warrant preliminary inquiry.

vii) While ensuring and protecting the rights of  the  accused  and  the complainant, a preliminary inquiry should be made time bound and in any case it should not exceed 7 days.  The fact of such  delay  and the causes of it must be reflected in the General Diary entry.

viii) Since the General Diary/Station Diary/Daily Diary is the record  of all information received in a police station, we  direct  that  all information relating to cognizable offences, whether  resulting  in registration of FIR or leading to an inquiry, must  be  mandatorily and meticulously reflected in the said Diary and the  decision  to conduct a preliminary inquiry must also be reflected, as mentioned above.


P.Sathasivam, CJI.

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#India – Courts should give special reasons for awarding #deathpenalty: Supreme Court

Tuesday, Nov 5, 2013, 18:38 IST | Agency: DNA


Courts should record “special” reasons while awarding death penalty and “must” take into account the crime and the character of the criminal which should reflect “extreme depravity” to deserve such a punishment, the Supreme Court has ruled.

A bench of justices A K Patnaik and Gyan Sudha Misra, which set aside a Rajasthan High Court verdict acquitting two persons in a decade-old gangrape and murder case, found fault with the trial court order sending convicts to the gallows, saying the “special reasons” noted by it do not make it a rarest of rare case. “…for awarding death sentence, special reasons have to be recorded as provided in Section 354(3), CrPC and while recording such special reasons, the court must pay due regard both to the crime and the criminal,” the bench said.

Referring to a constitutional bench verdict, it said “there are materials to show that the crime committed by respondents, both rape and murder of the deceased, were cruel, but there were no materials to establish that the character of the respondents was of extreme depravity so as to make them liable for the punishment of death.”

“The trial court has recorded special reasons for imposing the punishment of death on the respondents and these are that the respondents deceived and took away the deceased, turn wise committed rape on her in the darkness of night and thereafter committed her murder by throttling her by her chunni (scarf) and hence they were not entitled for any leniency and should be punished with death.

“In our view, the reasons given by the trial court do not make out the case to be a rarest of rare cases in which death sentence could be awarded to the respondents,” it said.

Setting aside the high court’s acquittal verdict, it awarded rigorous life imprisonment to convicts — Ram Niwas and Balveer — for strangulating the victim on the night of November 1, 2003. The convicts, who had ravished the victim before killing her, got ten years jail term for the offence of gang-rape.

The trial court had relied on the testimony of an accomplice of the accused who later turned the approver but the high court and refused to consider it.

The apex court, in its 33-page verdict, rejected the view of the high court that for turning an approver, who is also granted pardon, a person “has to inculpate himself in the offence and has to be privy to the crime, otherwise he removes himself from the category of an accomplice and places himself as an eyewitness.”

“The High Court failed to appreciate that the extent of culpability of the accomplice in an offence is not material so long as the magistrate tendering pardon believes that the accomplice was involved directly or indirectly in or was privy to the offence.

“The High Court also failed to appreciate that Section 133 of the Indian Evidence Act provides that an accomplice shall be a competent witness against an accused person.

“…When the pardon is tendered to an accomplice under Section 306, CrPC, the accomplice is removed from the category of co-accused and put into the category of witness and the evidence of such a witness as an accomplice can be the basis of conviction as provided in Section 133 of the Indian Evidence Act,” the apex court said.


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#India – SC reserves decision on the recognition of gender identity of transgender persons

Lawyers Collective


Sexuality confusion


In a case that has the potential to break the binary gender norms of male and female in law and administrative practices in the country, the Supreme Court on 29th October, 2013 reserved its judgment on the question of recognition of identity of transgender persons in India. The Division Bench of Justice K. S. Radhakrishnan and Justice A.K. Sikri was hearing a public interest litigation, National Legal Services Authority (NALSA) v. Union of India & Ors. [Writ Petition (Civil) No. 400 of 2012] filed in October, 2012. The petition sought several directions from the Court, including granting of equal rights and protection to transgender persons; inclusion of a third category in recording one’s sex/gender in identity documents like the election card, passport, driving license and ration card; and for admission in educational institutions, hospitals, access to toilets, amongst others.


Senior Advocate and Director, Lawyers Collective, Mr. Anand Grover appeared on behalf of Laxmi Narayan Tripathy, a famous hijra activist, and an intervener in the matter. Addressing the Bench on the questions raised in the Petition, Mr. Grover pointed out that gender is now understood as a continuum or a range, which is not restricted to the binary of male and female gender alone and which may be different from a person’s biological sex. A person may identify in the gender, which does not correspond with the sex assigned at birth, for example, a person, who is assigned female sex at birth, may identify as male or may identify as transgender, that is, other than male or female.


Mr. Grover argued that a person’s sense or experience of gender is integral to their core personality and their sense of being. Everyone has a right to be recognised in their chosen gender. This right lies at the heart of personal autonomy and freedom of persons. He further argued that recognition of gender identity should not be dependent on medical requirements, that is, one should not be required to undergo any medical procedure like hormonal therapy or sex reassignment surgery (SRS), in order to get legal recognition. At the same time, if one wishes to undergo any medical procedure, one should have access to free and quality health services, including SRS in public hospitals.


Reading Articles 14 and 15 (equality and non-discrimination), 19 (fundamental freedoms) and 21 (right to life) together, Mr. Grover submitted that the State has a duty to recognise the self-identified gender of all persons and should take necessary legal and administrative steps to accord such recognition in all identity documents, whether issued by the State or private entities and which indicate a person’s sex/gender, including birth certificates, educational certificate, passport, ration card and driving license. He further argued that the Constitution itself had recognised gender, which was included in the term ‘sex’ used in Article 15.  He thus noted that the constitutional guarantee of equality applies to all and no one can be discriminated by the State on the ground of ‘gender identity’ under Article 15.


 Mr. Grover asserted that there can be no justification for the State not recognising gender identities, other than male and female, especially when India has a rich tradition of persons who identify as the third gender. He traced the history of third gender identity to ancient religious and other texts and referred to the prominent role of the Hijra community in the royal courts of the Mughal rulers. However, the British criminalised the entire class of hijras in the 19th century, by categorizing them as a ‘criminal tribe’ and denuding them of their civil rights. The impact of criminalisation is still felt in many local laws even today, for instance, Section 36A was introduced in 2012 in theKarnataka Police Act, 1964, which provides for “registration and surveillance of Hijras who indulged in kidnapping of children, unnatural offences and offences of this nature.”    


The Union of India, through the Ministry of Social Justice and Empowerment (MOSJE), submitted they were in principle in agreement with the submissions pertaining to the recognition of transgender persons in law and that they have set up an expert committee on the issues relating to transgender persons and would take into account all the concerns raised by the Petitioner and the Interveners.


The Bench gave two weeks of time to the parties to file their written submissions and reserved the judgment.      

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