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Criminal Laws 

INTRODUCTION

India, like most nations, has a well-established system of criminal law to maintain social order, protect citizens’ rights, and ensure justice prevails. This intricate web of laws defines acts considered criminal offences, outlines punishments for those who commit them, and establishes procedures for investigation, trial, and sentencing. Understanding the core principles of criminal law empowers individuals to become responsible citizens and navigate legal situations effectively. This article delves into the foundational pillars of criminal law in India. We’ll explore the Indian Penal Code (IPC), the cornerstone statute defining criminal offences and their corresponding punishments. We’ll also examine the Criminal Procedure Code (CrPC), which lays out the legal framework for investigating crimes, prosecuting offenders, and ensuring fair trials. Additionally, we’ll touch upon recent developments and evolving areas within Indian criminal law.

HOW TO INVOKE

Invoking criminal law in India typically happens when a crime is committed. Here’s a breakdown of the general process:

  1. Reporting the Crime:
    • The first step is to report the crime to the nearest police station. Where police can file a First Information Report (FIR), a formal document detailing the incident.
    • The police are obligated to register the FIR if it discloses a cognizable offence (an offence for which police can arrest without a warrant).
  2. Investigation:
    • The police will investigate the crime, gather evidence, and identify suspects. This may involve questioning witnesses, collecting forensic evidence, and conducting searches (with proper warrants).
  3. Arrest and Charge:
    • If the investigation yields sufficient evidence, the police can arrest the suspect.
    • Depending on the severity of the offence, the arrest might require a warrant from a court.
  4. Trial Process:
    • The arrested individual will be presented before a court. Depending on the nature of the offence, the case might be tried in a magistrate court, sessions court, or high court.
    • The prosecution (usually represented by the state) will present evidence to prove the accused committed the crime beyond a reasonable doubt. The accused has the right to legal representation and a fair trial.
  5. Judgment and Sentencing:
    • If the court finds the accused guilty, it will pronounce a sentence based on the specific crime and relevant laws. Sentencing options can include imprisonment, fines, or both.
  6. Appeal:
    • Both the accused and the prosecution have the right to appeal the verdict in a higher court if they disagree with the judgment.

KEY OBJECTS & REASONS

Criminal law in India serves several key objectives, aiming to create a just and secure society. 

  1. Maintaining Public Order: The primary objective is to deter crime and ensure public order by outlining what constitutes a criminal offence and prescribing appropriate punishments. This discourages anti-social behaviour and fosters a sense of safety within communities.
  2. Protecting Individual Rights: Criminal law safeguards the fundamental rights of citizens by defining acts that violate these rights, such as theft, assault, or murder. By punishing such acts, the law protects individuals from harm and upholds their right to live peacefully.
  3. Ensuring Justice for Victims: Criminal law provides a framework for investigating crimes, prosecuting offenders, and securing justice for victims. Victims have the right to see perpetrators held accountable and receive appropriate compensation where applicable.
  4. Promoting Fairness and Due Process: The legal system upholds principles of fairness by ensuring a fair trial for the accused. The burden of proof lies with the prosecution, and the accused has the right to legal representation and the opportunity to defend themselves.
  5. Deterring Crime: Criminal law acts as a deterrent by outlining the potential consequences of criminal behaviour. Knowing the punishments associated with specific offences can discourage individuals from engaging in criminal activity.
  6. Maintaining Social Order: By enforcing criminal laws, the state discourages revenge killings, feuds, and other forms of vigilantism. The legal system serves as the primary mechanism for addressing crimes and ensuring social order is maintained.

These objectives work together to create a society where citizens can live freely and securely, with the knowledge that their rights are protected and that there are legal consequences for those who violate the law.

KEY ELEMENTS & ESSENTIALS

India’s criminal justice system hinges on a robust framework with crucial elements working in tandem. Here’s a breakdown of the essentials:

  1. Indian Penal Code (IPC), 1860: This cornerstone legislation defines a vast array of criminal offenses, ranging from theft and assault to murder and treason. It also prescribes specific punishments for each offense, ensuring a clear link between crime and consequence.
  2. Criminal Procedure Code (CrPC), 1973: This code outlines the legal procedures for investigating crimes, prosecuting offenders, and ensuring fair trials. It dictates how the police investigate, how evidence is collected, and how trials are conducted, safeguarding the rights of both the accused and the victim.
  3. Indian Evidence Act, 1872: This law governs the types of evidence admissible in court and the rules for presenting it. It ensures the reliability and credibility of evidence used to convict or acquit an accused.
  4. Presumption of Innocence: A fundamental principle enshrined in Indian criminal law is the presumption of innocence until proven guilty. This means the burden of proof lies with the prosecution to establish the guilt of the accused beyond a reasonable doubt. The accused is not required to prove their innocence.
  5. Right to a Fair Trial: The CrPC guarantees the accused the right to a fair trial, including the right to be represented by a lawyer, to present evidence in their defense, and to cross-examine witnesses. This ensures that justice is served through a balanced and impartial process.
  6. Judicial System: India’s court system plays a pivotal role in enforcing criminal law. Magistrate courts handle less serious offenses, while sessions courts and high courts deal with more complex cases. The Supreme Court acts as the ultimate interpreter of the law and can overturn lower court decisions.

Certainly! India recently implemented a significant overhaul of its criminal justice system with the introduction of three new central laws in December 2023:

  1. The Bharatiya Nyaya Sanhita (BNS), 2023: This act replaces the Indian Penal Code (IPC). It retains the core structure of the IPC but introduces some key changes.
  2. The Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023: This code supersedes the existing Code of Criminal Procedure (CrPC). It aims to expedite the criminal justice process by:
    • Mandating completion of criminal trials within three years.
    • Requiring courts to deliver judgments within 45 days of reserving them.
    • Streamlining procedures for investigation and evidence collection.
  3. The Bharatiya Sakshya Adhiniyam (BSA), 2023: This act replaces the Indian Evidence Act, 1872. It focuses on making the presentation of evidence in court more efficient and reliable by:
    • Giving greater weight to electronic evidence like digital records and recordings.
    • Simplifying procedures for witness testimony and cross-examination.

These new laws are currently in the implementation phase, with a rollout date of July 1, 2024. While some provisions are being debated (like the suspension of stricter punishments for hit-and-run cases under the BNS), these changes represent a significant modernization of India’s criminal justice system. They aim to ensure faster trials, fairer procedures, and a more humane approach to punishment.

TYPES

By Severity:

  1. Felonies (Sangin Aparadh): Serious offences punishable by imprisonment exceeding three years, often with fines. Examples include murder, rape, robbery, and dacoity (armed robbery by a group).
  2. Misdemeanours (Sadharan Aparadh): Less serious offences punishable by imprisonment up to three years, or with fines. Examples include assault, theft, public nuisance, and criminal trespass.

By Nature of Offence:

  1. Offences Against the State: Acts that threaten national security or challenge the authority of the state, like treason, waging war, and sedition.
  2. Offences Against the Person: Crimes that harm individuals physically or mentally, including murder, assault, rape, kidnapping, and causing hurt.
  3. Offences Against Property: Acts that violate property rights, such as theft, robbery, arson, and criminal trespass.
  4. Economic Offenses: Crimes related to financial gain through illegal means, like forgery, counterfeiting, cheating, and embezzlement.
  5. Cybercrimes: Offenses committed using computer networks, including hacking, data theft, cyberbullying, and online fraud.

Additionally:

  1. Cognizable and Non-Cognizable Offences: This classification determines police arrest powers. Cognizable offences allow police to arrest without a warrant, while non-cognizable offenses require a warrant or court order.

It’s important to note that the new Bharatiya Nyaya Sanhita (BNS), 2023, has introduced some changes to these categories. For instance, the death penalty has been abolished for most offences, and some acts like adultery have been decriminalized.

DIFFERENT LAWS/PROVISIONS

Central Laws (Enforced Throughout India):

  1. The Bharatiya Nyaya Sanhita (BNS), 2023: This new act is the foundation, outlining core offences and punishments. It covers a wide range of crimes including
    • Offences against the State (treason, waging war, sedition)
    • Offences against the Person (murder, rape, assault, kidnapping)
    • Offences against Property (theft, robbery, arson, criminal trespass)
    • Economic Offenses (forgery, counterfeiting, cheating, embezzlement)
    • Cybercrimes (hacking, data theft, cyberbullying, online fraud)
  2. The Bharatiya Nagrik Suraksha Sanhita (BNSS), 2023: 
  3. This code, introduced alongside the BNS, supersedes the existing Code of Criminal Procedure (CrPC). It aims to expedite the criminal justice process by:
    • Mandating completion of criminal trials within three years.
    • Requiring courts to deliver judgments within 45 days of reserving them.
    • Streamlining procedures for investigation and evidence collection.
  4. The Bharatiya Sakshya Adhiniyam (BSA), 2023: 

This act replaces the Indian Evidence Act, 1872. It focuses on making the presentation of evidence in court more efficient and reliable by:

  • Giving greater weight to electronic evidence like digital records and recordings.
  • Simplifying procedures for witness testimony and cross-examination.

While Repseded:

  • The Indian Penal Code (IPC), 1860 (replaced by BNS): This historic code previously defined a vast array of criminal offences and their punishments. It served as the cornerstone of India’s criminal justice system for over 160 years.
  • The Code of Criminal Procedure (CrPC), 1973 (replaced by BNSS): This code previously outlined the legal procedures for investigating crimes, prosecuting offenders, and ensuring fair trials.

Other Central Acts: 

Supplement the BNS by addressing specific criminal activities:

  • Narcotics Drugs and Psychotropic Substances Act, 1985 (drug offences)
  • The Prevention of Corruption Act, 1988 (corruption by public servants)
  • The Information Technology Act, 2000 (amended in 2008) (cybercrimes)
  • The Dowry Prohibition Act, 1961 (dowry)
  • The Protection of Women from Domestic Violence Act, 2005 (domestic violence)
  • The Scheduled Castes and Scheduled Tribes (Prevention of Atrocities Act), 1989 (atrocities against marginalized communities)
  • The Indian Arms Act, 1959 (firearms)
  • Unlawful Activities (Prevention) Act, 1967 (terrorism)
  • The Immoral Traffic (Prevention) Act, 1956 (prostitution)
  • The Indian Wildlife (Protection) Act, 1972 (wildlife crimes)
  • The Explosive Substances Act, 1908 (explosives)

State Laws:

In addition to central laws, each state in India can enact its own legislation to address specific concerns within their jurisdiction. These might include:

  • Laws related to gambling, liquor consumption, and other social regulations.
  • Laws specific to local customs and traditions.
  • Environmental protection laws.

PROCEDURE & STAGES

India’s criminal justice system follows a well-defined process outlined in various sections of the Bharatiya Nagrik Suraksha Sanhita (BNSS), 2023, and other relevant laws.

  1. Reporting the Crime The process typically begins with filing a First Information Report (FIR) at the nearest police station.
    • The FIR as a document detailing the information related to the commission of a cognizable offense.
    • Mandates the police to register an FIR if it discloses a cognizable offense (offense for which arrest can be made without a warrant).
  2. Investigation :
    • Upon registering the FIR, the police initiate an investigation. (This may involve:
    • Questioning witnesses to understand the events surrounding the crime.
    •  Collecting forensic evidence from the crime scene
    •  Conducting searches of locations or individuals with proper warrants
    •  Recording statements of the accused, if apprehended (refer to CrPC Sections 161-164 for procedures regarding recording confessions and statements).
  3. Arrest and Charge:
    • If the investigation yields sufficient evidence, the police can arrest the accused Depending on the offense’s severity, an arrest warrant from a court might be required.
    • The arrested individual will be informed of the charges against them and their right to legal representation. 
  4. Pre-Trial Stage:
    • Magistrate’s Court : For less serious offenses, the case might be presented before a magistrate’s court. The magistrate will review the police investigation report and decide whether to proceed with a trial.
    • Sessions Court : More serious offenses will be heard in a sessions court, presided over by a judge Here, the prosecution will present their case against the accused, aiming to prove their guilt beyond a reasonable doubt. The accused has the right to defend themself and present their own evidence.
  5. Trial 
    • During the trial, both the prosecution and the defense will present their arguments and evidence. Witnesses may be called to testify, and the accused has the right to cross-examine them.
    • The Bharatiya Nagrik Suraksha Sanhita (BNSS), 2023, mandates completion of criminal trials within three years.
  6. Judgment and Sentencing
    • After considering all evidence and arguments, the judge will deliver a verdict – guilty or not guilty.
    • If found guilty, the court will pronounce a sentence based on the specific offense and the BNS (Bharatiya Nyaya Sanhita) provisions. Sentencing options can include imprisonment, fines, or both.
  7. Appeal (Optional) 
    • Both the prosecution and the accused have the right to appeal the verdict in a higher court if they disagree with the judgment. The appellate court will review the case and decide whether to uphold the lower court’s decision or order a retrial.

LIMITATIONS

India’s criminal justice system aspires to deliver justice but faces limitations that hinder its effectiveness. A major challenge is the overwhelming backlog of cases, leading to delayed trials that discourage victims and erode public trust. Weak investigations due to resource constraints can result in flimsy cases and acquittals of the guilty. Witness intimidation further impedes justice, as fear discourages cooperation and weakens prosecutions. Overcrowded prisons offer poor living conditions and limited rehabilitation opportunities. Allegations of corruption within the system add to the sense of unfairness. Socioeconomic factors like poverty and illiteracy create vulnerabilities for criminals to exploit, while the system struggles to keep pace with emerging crimes like cyber offences. Improvements can be made through strengthening police infrastructure, establishing fast-track courts, implementing witness protection programs, reforming prisons, and fostering community policing. Increasing access to legal aid can empower marginalized communities. By acknowledging these limitations and implementing effective solutions, India’s criminal justice system can evolve towards delivering swifter and fairer justice for all.

ENFORCEMENT

Enforcing criminal law in India walks a tightrope between safeguarding individual rights and maintaining public order. The police, overseen by the central government, form the backbone of enforcement, investigating crimes and collecting evidence within the legal framework outlined by the BNS (Bharatiya Nagrik Suraksha Sanhita). However, resource limitations can lead to weak investigations, while witness intimidation and allegations of corruption hinder prosecutions. To address these issues, India is focusing on police reforms, witness protection programs, and community policing initiatives. Additionally, fast-track courts aim to reduce case backlogs and expedite trials. Ultimately, effective enforcement relies on upholding the rule of law, protecting individual rights, and fostering public trust in a fair and transparent system. As India tackles these challenges, its criminal law enforcement can become more efficient in delivering timely and just outcomes.

CONCLUSION

India’s criminal justice system strives to deliver justice for all. While it faces limitations like case backlogs, weak investigations, and prison overcrowding, significant efforts are underway to address these challenges. The BNS (Bharatiya Nyaya Sanhita) and BNSS (Bharatiya Nagrik Suraksha Sanhita) represent a step towards a more streamlined and efficient system. Strengthening police infrastructure, implementing witness protection programs, and fostering community involvement are crucial for effective enforcement. Additionally, increasing access to legal aid can empower marginalized communities. By acknowledging its limitations and continuously adapting, India’s criminal justice system can evolve into a more robust and reliable guardian of public safety and individual rights. The future of Indian criminal law lies in achieving a balance between swiftness, fairness, and a commitment to upholding the rule of law.

JUDGEMENTS

Maneka Gandhi Vs. Respondent: Union of India (UOI) and Ors

Decided on 25.01.1978 Supreme Court of India.

Case No:

Writ Petition No. 231 of 1977

Coram: 

7 Judge Bench of:

HON’BLE  MR JUSTICE M. HAMEEDULLAH BEG (C.J.)

HON’BLE  MR JUSTICE N.L. UNTWALIA

HON’BLE  MR JUSTICE P.N. BHAGWATI

HON’BLE  MR JUSTICE P.S. KAILASAM

HON’BLE  MR JUSTICE S. MURTAZA FAZAL ALI

HON’BLE  MR JUSTICE V.R. KRISHNA IYER

HON’BLE  MR JUSTICE Y.V. CHANDRACHUD

Issue:

Validity of provisions – Articles 14, 19 and 21 of Constitution of India and Section 10 (3) (c) of Passports Act, 1967.

Fact:

In this case, the petitioner’s passport was impounded ‘in the public interest’ by an order dated 2 July 1977. When reasons for impounding her passport was sought, the Government of India declined to provide any. The Petitioner filed a writ petition under Article 32 of the Constitution of India, challenging the order on the grounds that it violated Articles 14, 19, and 21 of the Constitution.

Held 

  1. Article 19(1)(f) and Article 31(2) are not mutually exclusive there is no justification for holding that the case is authority for the proposition that the legislation under Article 21 should also satisfy all the fundamental rights guaranteed under Article 19(1) of the Constitution. As emphasised earlier Article 19(1)(f) and Article 31(2) form a single pattern and deal with right to property. The fundamental right under Article 19(1)(f) is restricted under Article 19(5) or Article 31(2) and as the article refer to right to property they are so closely interlinked and cannot be held to be mutually exclusive. But Article 21 is related to deprivation of life and personal liberty, and it has been held that it is not one of the rights enumerated in Article 19(1) and refers only to personal rights as are not covered by Article 19.
  2. In the result, the court held that the petitioner is not entitled to any of the fundamental rights enumerated in Article 19 of the Constitution and that the Passport Act complies with the requirements of Article 21 of the Constitution and is in accordance with the procedure established by law. I construe Section 10(3)(c) as providing a right to the holder of the passport to be heard before the passport authority and that any order passed under Section 10(3) is subject to a limited judicial scrutiny by the High Court and the Supreme Court.

Arnesh Kumar vs. State of Bihar

Decided on 02.07.2014 Supreme Court of India.

Case No:

Criminal Appeal No. 1277 of 2014 (Arising out of Special Leave Petition (Crl.) No. 9127 of 2013)

Coram:

2 Judge Bench of:

HON’BLE  MR JUSTICE C.K. PRASAD 

HON’BLE  MR JUSTICE PINAKI CHANDRA GHOSE 

Issue:

Whether the casual manner in which accused in cases under Section 498A of the IPC and Section 4 of the Dowry Prohibition Act are arrested and remanded to judicial custody can be addressed through specific directions to police officers and magistrates?

Fact:

The petitioner in this case was apprehending arrest in a case under Section 498A of the Indian Penal Code and Section 4 of the Dowry Prohibition Act, 1961. The petitioner had moved for anticipatory bail, which was rejected. The petitioner then approached the Supreme Court seeking anticipatory bail. The Supreme Court expressed concern at the casual manner in which accused in such cases are arrested and remanded to judicial custody and issued a series of directions to ensure that the police and magistrates are more circumspect in arresting the accused without warrant and in committing them to judicial custody.

Held 

  1. Our endeavour in this judgment is to ensure that police officers do not arrest accused unnecessarily and Magistrate do not authorise detention casually and mechanically. In order to ensure what we have observed above, we give the following direction:

(1) All the State Governments to instruct its police officers not to automatically arrest when a case Under Section 498-A of the Indian Penal Code is registered but to satisfy themselves about the necessity for arrest under the parameters laid down above flowing from Section 41, Code of Criminal Procedure;

(2) All police officers be provided with a check list containing specified sub-clauses Under Section 41(1)(b)(ii);

(3) The police officer shall forward the check list duly filed and furnish the reasons and materials which necessitated the arrest, while forwarding/producing the accused before the Magistrate for further detention;

(4) The Magistrate while authorising detention of the accused shall peruse the report furnished by the police officer in terms aforesaid and only after recording its satisfaction, the Magistrate will authorise detention;

(5) The decision not to arrest an accused, be forwarded to the Magistrate within two weeks from the date of the institution of the case with a copy to the Magistrate which may be extended by the Superintendent of police of the district for the reasons to be recorded in writing;

(6) Notice of appearance in terms of Section 41A of Code of Criminal Procedure be served on the accused within two weeks from the date of institution of the case, which may be extended by the Superintendent of Police of the District for the reasons to be recorded in writing;

(7) Failure to comply with the directions aforesaid shall apart from rendering the police officers concerned liable for departmental action, they shall also be liable to be punished for contempt of court to be instituted before High Court having territorial jurisdiction.

(8) Authorising detention without recording reasons as aforesaid by the judicial Magistrate concerned shall be liable for departmental action by the appropriate High Court.

The court held that police officers should not arrest accused individuals unnecessarily and magistrates should not authorize detention casually or mechanically. To ensure this, the court issued several directions, including instructing state governments to have police officers satisfy themselves about the necessity for arrest under the parameters laid down in the Code of Criminal Procedure, providing police officers with a checklist, and requiring magistrates to peruse reports furnished by police officers and record their satisfaction before authorizing detention. The court also stated that failure to comply with these directions could result in departmental action or punishment for contempt of court. Additionally, the court clarified that these directions apply not only to cases under certain sections of the Indian Penal Code and Dowry Prohibition Act but also to cases where the offense is punishable with imprisonment for a term less than or equal to seven years.



Navtej Singh Johar and Ors. Vs. Respondent: Union of India (UOI) and Ors

Decided on 06.09.2018 Supreme Court of India.

Case No:

Writ Petition (Criminal) No. 76 of 2016, Writ Petition (Civil) No. 572 of 2016, Writ Petition (Criminal) Nos. 88, 100, 101 and 121 of 2018 (Under Article 32 of the Constitution of India) 

Coram:

5 Judge Bench of:

HON’BLE  MR JUSTIC DIPAK MISRA (CJI)

HON’BLE  MR JUSTICE A.M. KHANWILKAR

HON’BLE  MR JUSTIC ROHINTON FALI NARIMAN 

HON’BLE  MR JUSTIC DR. D.Y. CHANDRACHUD

HON’BLE  MR JUSTIC INDU MALHOTRA

Issue:

Constitution – Validity of provision – Section 377 of Indian Penal Code, 1860 (IPC) and Articles 14, 15, 19, and 21 of Constitution of India, 1950. Whether Section 377 is vague and arbitrary? Whether Section 377 prohibits LGBT persons from expressing their sexual orientation and engaging in sexual conduct in private?

Fact:

The present Writ Petitions challenges the constitutional validity of Section 377 of the Indian Penal Code, 1860 (“IPC”) on the specific ground that it criminalizes consensual sexual intercourse between adult persons belonging to the same sex in private. Section 375 permits consensual penetrative acts, but Section 377 makes the same acts of penetration punishable irrespective of consent. The LGBT community argues that Section 377 prohibits them from expressing their sexual orientation and engaging in sexual conduct in private.

Held

527 (i. The offence of “carnal intercourse against the order of nature” has not been defined in Section 377. It is too wide, and open-ended, and would take within its sweep, and criminalise even sexual acts of consenting adults in private.

Sexual orientation is immutable, since it is an innate feature of one’s identity, and cannot be changed at will. The choice of LGBT persons to enter into intimate sexual relations with persons of the same sex is an exercise of their personal choice, and an expression of their autonomy and self-determination. 

Section 377 insofar as it criminalises voluntary sexual relations between LGBT persons of the same sex in private, discriminates against them on the basis of their “sexual orientation” which is violative of their fundamental rights guaranteed by Articles 14, 19, and 21 of the Constitution.

ii) The mere fact that the LGBT persons constitute a “miniscule fraction” of the country’s population cannot be a ground to deprive them of their Fundamental Rights guaranteed by Part III of the Constitution. Even though the LGBT constitute a sexual minority, members of the LGBT community are citizens of this country who are equally entitled to the enforcement of their Fundamental Rights guaranteed by Articles 14, 15, 19, and 21. 

Fundamental Rights are guaranteed to all citizens alike, irrespective of whether they are a numerical minority. Modern democracies are based on the twin principles of majority rule, and protection of fundamental rights guaranteed under Part III of the Constitution. Under the Constitutional scheme, while the majority is entitled to govern; the minorities like all other citizens are protected by the solemn guarantees of rights and freedoms under Part III.  

529 (i. The Court declared that insofar as Section 377 criminalises consensual sexual acts of adults (i.e. persons above the age of 18 years who are competent to consent) in private, is violative of Articles 14, 15, 19, and 21 of the Constitution. 

It is, however, clarified that such consent must be free consent, which is completely voluntary in nature, and devoid of any duress or coercion. 

The Court struck down Section 377 of the IPC as violative of the fundamental rights guaranteed by Articles 21, 19 and 14 of the Constitution. The Court observed that Section 377 is vague and arbitrary as carnal intercourse against the order of nature is neither defined in the Section nor in the IPC or any other law. The Court further held that Section 377 prohibits LGBT persons from expressing their sexual orientation and engaging in sexual conduct in private, a decision which inheres in the most intimate spaces of one’s existence. Therefore, Section 377 cannot be justified as a reasonable restriction under Article 19(2) on the basis of public or societal morality, since it is inherently subjective.

Mohd. Ahmed Khan Vs. Shah Bano Begum and Ors.

Decided on 23.04.1985 Supreme Court of India.

Case No:

Criminal Appeal No. 103 of 1981 

Coram:

5 Judge Bench of:

HON’BLE  MR JUSTICE Y.V. CHANDRACHUD (C.J.)

HON’BLE  MR JUSTICE D.A. DESAI

HON’BLE  MR JUSTICE E.S. VENKATARAMIAH

HON’BLE  MR JUSTICE O. CHINAPPA REDDY

HON’BLE  MR JUSTICE RANGANATH MISRA 

Issue:

Whether the Muslim Personal Law imposes an obligation upon the husband to provide for the maintenance of his divorced wife beyond the period of iddat?

Fact

On November 6, 1978, the appellant divorced the respondent by an irrevocable talaq. In July 1980, in a revisional application filed by the respondent, the High Court of Madhya Pradesh enhanced the amount of maintenance to Rs 179.20 per month. The appellant filed an appeal against this order.

Held 

The court observed that under Section 125(1)(a) of the Code of Criminal Procedure, a person who, having sufficient means, neglects or refuses to maintain his wife who is unable to maintain herself, can be asked by the court to pay a monthly maintenance to her at a rate not exceeding five hundred rupees. The religion professed by a spouse or by the spouses has no place in the scheme of these provisions. The court further observed that Clause(b) of the Explanation to Section 125(1), which defines “wife” as including a divorced wife, contains no words of limitation to justify the exclusion of Muslim women from its scope. The court held that since the Muslim Personal Law, which limits the husband’s liability to provide for the maintenance of the divorced wife to the period of iddat, does not contemplate or countenance the situation envisaged by Section 125, it would be wrong to hold that the Muslim husband, according to his personal law, is not under an obligation to provide maintenance, beyond the period of iddat, to his divorced wife who is unable to maintain herself. The court relied on the verses (Aiyats) 241 and 242 of the Quran, which show that there is an obligation on Muslim husbands to provide for their divorced wives. The court also referred to various decisions to establish that the payment of dower may be deferred to a future date as, for example, death or divorce.

In this case, the court dismissed the appeal and confirmed the judgment of the High Court. The court held that a divorced Muslim wife is entitled to apply for maintenance under Section 125 and that Mahr is not a sum which, under the Muslim Personal Law, is payable on divorce.

Vishaka And Others v. State Of Rajasthan And Ors.

Decided on 13.08.1997  Supreme Court of India.

Case No:

Writ Petitions (Crl.) Nos. 666-70 of 1992

Coram:

3 Judge Bench of:

HON’BLE  MR JUSTICE J.S. VERMA (C.J.) 

HON’BLE  MR JUSTICE SUJATA V. MANOHAR

HON’BLE  MR JUSTICE B.N. KIRPAL

Issue:

Enforcement of the fundamental rights of working women under Articles 14, 19 and 21 of the Constitution of India.

Fact

The immediate cause for the filing of this writ petition is an incident of alleged brutal gang rape of a social worker in a village of Rajasthan. Hence, the present petition has been brought as a class action by certain social activists and NGOs with the aim of focussing attention towards this societal aberration, and assisting in finding suitable methods for realisation of the true concept of “gender equality”; and to prevent sexual harassment of working women in all workplaces through judicial process, to fill the vacuum in existing legislation.

Held 

In the absence of enacted law to provide for the effective enforcement of the basic human right of gender equality and guarantee against sexual harassment and abuse, more particularly against sexual harassment at workplaces, the court laid down the guidelines and norms for due observance at all workplaces or other institutions, until a legislation is enacted for the purpose. This is done in exercise of the power available under Article 32 of the Constitution for enforcement of the fundamental rights and it is further emphasised that this would be treated as the law declared by this Court under Article 141 of the Constitution. 

Thus, the power of this Court under Article 32 for enforcement of the fundamental rights and the executive power of the Union have to meet the challenge to protect the working women from sexual harassment and to make their fundamental rights meaningful. 

Gender equality includes protection from sexual harassment and right to work with dignity, which is a universally recognised basic human right. 

The meaning and content of the fundamental rights guaranteed in the Constitution of India are of sufficient amplitude to encompass all the facets of gender equality including prevention of sexual harassment or abuse. 

There is no reason why these international conventions and norms cannot, therefore, be used for construing the fundamental rights expressly guaranteed in the Constitution of India which embody the basic concept of gender equality in all spheres of human activity. 

Adverse consequences might be visited if the victim does not consent to the conduct in question or raises any objection thereto. 

All employers or persons in charge of workplace whether in the public or private sector should take appropriate steps to prevent sexual harassment.

The Complaints Committee should be headed by a woman and not less than half of its  members should be women.

Employees should be allowed to raise issues of sexual harassment at workers’ meeting and  in other appropriate forums and it should be affirmatively discussed in employer-employee meetings. 

Accordingly, the court directed that the above guidelines and norms would be strictly observed in all workplaces for the preservation and enforcement of the right to gender equality of the working women. These directions would be binding and enforceable in law until suitable legislation is enacted to occupy the field.