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Home Explore Libertatem Magazine - Issue 36 [January 2018]

Libertatem Magazine - Issue 36 [January 2018]

Published by Libertatem Magazine, 2018-01-20 10:13:38

Description: Libertatem Group is proud to release its 36th Edition (Anniversary Edition) of the flagship Libertatem Magazine. The current issue covers articles ranging from the Bitcoin Bubble to Gujarat Elections and much more.


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EDITION 36 JANUARY 2018LIBERTATEM MAGAZINE Anniversary EditionCover Story Featured StoryGujarat Legal Recap of 2017Elections2017: FinalVerdict withNew IndicationsEditor’s PickInstant Triple Talaq andCriminalization of it: Stifling theRights of Individuals

LIBERTATEMLibertatem Magazine - Masthead MAGAZINE Edition 36 - January 15, 2018 Anniversary Edition Masthead Editor In Chief Ankita Ranawat Pubishing Editor Rahul Ranjan VP - Editorial Operations Ritisha Mukherjee (Institute of Law, Nirma University) Advisory Editors Prof. Dr. Howard Williamson (Univ. of South Wales) Prof. Dr. Ahmad Ghouri (Univ. of Sussex) Dr. A. Lakshminath (Chanakya National Law Univ.) Prof. T. Sathyamurthy (National Law School of India Univ.) Dr. Borbala Fellegi (Consultant, Social Policy, Hungary) Dr. Dabiru Patnaik (Jindal Global Law School) Shhaurya Sah (Associate, Inttl Advocare) Fr. Peter Ladis (Chanakya National Law Univ.) Editorial Associate Nada Faruqi (Aligarh Muslim University) Senior Editors Smriti Brar Swarnabh Dutta Madhav Kumar (LLM, University of Hong Kong) Associate Editors Rubel Bareja (Institute of Law, Nirma University) Rohit Yodha (Institute of Law, Nirma University) Amit Singhal (National Law Institute University, Bhopal) Apurv Taran Jain (National Law University, Odisha) Arushi Sheti (Amity Law School, Delhi) Mohd. Azeemullah (University of Al-Asmariya, Libya) Saloni Sharma (Institute of Law, Nirma University) Muskan Yadav (Institute of Law, Nirma University) Content Developers Khushbu Shah (Maharastra National Law University) Vaishakhi Mudanna (Damodaram Sanjivayya National Law University) Vaibhav Sharma (Rajiv Gandhi National University of Law) Nitya Jain (Instiitute of Law, Nirma University) Shreyan Acharya (Vivekananda Institute of Professional Studies) Shresth Vardhan (Institute of Law, Nirma University) Debajyoti Saha (School of Law, Christ University) Mohammad Azeemullah (University of Al-Asmariya, Libya) Chahat Mangtani (Institute of Law, Nirma University) Shashwat Tiwari (Institute of Law, Nirma University) VP - The Courtroom Swarnalee Haldar (Advocate) The Courtroom Reporters Jane Maria (National Law University, Odisha) Shweta Subudhi (Midnapore law college, Vidyasagar University) Desktop Publishing Design Ankita Ranawat & Rahul Ranjan © All Rights Reserved by Libertatem Media Group [2018]

Contents Contents of Edition 30 January 2018 Volume 4 Number 1 Edition 36Cover StoryGujarat Elections 2017: Final Verdict with New Indications (p.4)Editor’s PickInstant Triple Talaq and Criminalization of it: Stifling the Rights of Individuals (p.6)Featured StoryLegal Recap of 2017 (p.8)Legal News StoriesPoverty Line in India: Time to take the Measurement Seriously (p.14)Leadership of Rahul Gandhi and the Challenges ahead for the Congress Party (p.18)Latest trends in Cryptocurrency (p.20)Madhya Pradesh’s New Rape Law: A Knee-Jerk Legislation Against A Setting Sun (p.22)08 14 20 © All Rights Reserved by Libertatem Media Group [2018]Disclaimer - The opinion expressed in each article is the opinion of its author and does not necessarily reflect the opinion of Libertatem Media Group. Therefore, Libertatem Magazine carries no responsibility for the opinion expressed thereon.

Libertatem Magazine - Edition 36Gujarat Elections2017: Final Verdictwith New Indications By Shreyan Acharya The Gujarat and Himachal Pradesh Assembly Elections ended after a long dramatic political war between the arch political rivals. The elections had been a litmus test to prove the credibility of Modi-Shah duo and Rahul Gandhi’s leadership abilities. The results are out, and the Bharatiya Janta Party managed to secure a majority to form a government in both the States. The numbers speak for themselves as in the state of Himachal Pradesh the BJP managed to overthrow the incumbent Congress Government by securing 44 seats whereas in GujaratPage 4

Cover Storythe incumbency factor did not do much harm to the already existing BJP government as they managed tosecure 99 seats to establish a majority to form a government. But, the result itself indicates several factors tothe change in numbers.Gujarat Elections Overshadowing the Hill StateThe elections were closely watched as many things were dependent upon its final verdict. The revival of Ra-hul Gandhi was seen during the election campaigning. He vociferously attacked the government’s failure onmany fronts. He took several jibes on the government’s failure to fulfil its promise of good governance. Theopposition in Gujarat united under the garb of growing discontent amongst both rural and urban centres.The Dalit issue took the centre-stage with independent and strong leaders like Jignesh Mevani and AlpeshThakor campaigning against the BJP’s negligence to address atrocities against the Dalits. The Congressattacked the Modi government’s decision of demonetisation and GST which affected both the business andfarming communities. The Patidar agitation was seen as a big backdrop to the BJP’s stronghold in Gujarat.Leaders like Hardik Patel openly supported the Congress for its anti-incumbency stand in Gujarat and reser-vation for Patidars considered as a major impediment to BJP as it divided a major vote share. The elections inHimachal Pradesh were contested against the Congress Government. The issue was centred on anti-incum-bency and failure of Congress Government to tackle growing incidents of crime and allegations of corruptionagainst the top leaders of the State. The BJP used the anti-incumbency card and relied its campaign upon it.The result indicates the successful strategy adopted by the BJP to secure adequate votes for forming a gov-ernment. But, the Himachal Pradesh assembly elections were more or less overshadowed with the electionsin Gujarat. The reason behind is simply Narendra Modi, as his political journey started from Gujarat to Delhiand Gujarat known to be his home turf became more important to test the Modi wave which many claimedto be deteriorating.Dramatic ElectionsThe journey from campaigning to voting to results faced many controversies. The controversy started withthe delay in the announcement of the election dates in Gujarat by the Election Commission. Many commenta-tors eyed on this delay as an influence by the Centre on the functioning of the ECI. The Election Commissionunder heavy criticism finally announced the dates. The BJP again came under heavy criticism of breachingthe privacy when the alleged sex tapes of Hardik Patel were leaked which were used as an election stunt toquestion the moral ground of a leader. The allegations of money power to illicitly influence leaders of thePatidar movement by Narendra Patel at a press conference raised many questions upon the use of moneypower to harm the principle of free and fair elections. The BJP was cornered on many fronts. The strategy toplay the Hindu card by questioning Rahul Gandhi’s motive of visiting temples or allegations against AhmedPatel of having terrorist links backfired against the BJP. The campaigning took an ugly turn when therewere personalised attacks and character assassinations by leaders of both the sides. The Vikas agenda tookthe backstage. The BJP in retaliation attacked in full force by deploying top ministers in the State and usingNarendra Modi as an ace to win the electorates. The Modi card worked again but the numbers have droppedtremendously.Strong Leadership with Collective PerformanceThe moot question was whether the collective anti-BJP campaign of the Congress will be good enough toovertake BJP. Well, it is not in affirmative. But, the Congress managed to set a benchmark. Ever since the 2002elections, the number of seats has dropped incessantly. The Modi factor may have worked throughout tomaintain a stronghold, but the local leaders should take a lesson from this victory to improve their credibilityrather than relying everything on one person. This victory may have come on the backdrop of weak opposi-tion which is also not entirely true as Rahul Gandhi and many young leaders have emerged as a strong faceagainst many local leaders. Even in the State of Himachal Pradesh the party could not rejoice with full forcedue to the defeat of State Chief Ministerial candidate Dhumal. Many top leaders of Gujarat have also failed tosecure a seat which brings ahead many challenges to the entire party’s performance overall. The BJP leader-ship have received another opportunity to fulfil all its promises in the next five years to regain the confidenceof the electorates and not rely on the sole vision of one person. India’s electoral system is successful becauseit stands on the principle of participative democracy and it is not a one man’s show. So, popularity of oneleader can be a plus point, but every individual must realise the effectiveness of collective performance. Page 5

Libertatem Magazine - Edition 36Instant TripleTalaq andoCfriimt:iSntailfilzinagtionthe Rights ofIndividualsBy Mohammad Azeemullah What instant Triple talaq is to ‘Muslim wives’, criminalization of it is to ‘Muslim husbands’. The former has been sa- credly practiced in the name of religion while the latter has been hastily enacted in the name of safeguarding wom- en’s rights. Both are barbarous and inhuman. How both of them Operates: Instant Triple Talaq defined as “talaq-e-biddat makes wife stranger to her husband in a second. Triple Talaq Bill turns husband a criminal to his wife in a moment. Both fail to act as an arbitrator in the strained relationship be- tween husband and wife. The civilized world cannot stand to the barbarity inflicted upon individuals either by faith or by the state. The Quran categorically rejects Instant Triple Talaq. There is not a single verse that validates the notion of triple talaq in one sitting. It sets certain norms to execute divorce, just as there are norms to sanctify marriage. Numerous verses of the Quran such as 4:35, 2:226-227, 2:228, and 65:1-2 validate the argument in this direction. The Holy book of Islam demands time and patience in executing a divorce. In fact, it leans more toward safeguarding marriage than dissolving it abruptly. Unfortunately, Muslims in India, particularly the Hanafi sect, don’t follow the Quranic decree over matters of talaq. To them, traditions supersede religion. However, they too consider that ‘instant triple talaq’ known as ‘talaq-e-bid- dat’ is a sin but they have never been vocal to contain it. The controversy reached a flashpoint letting government at Centre pass the Muslim Women (Protection of Rights on Marriage) Bill, 2017 in the Lok Sabha. Is criminalizing instant triple talaq an answer to protect the rights of a Muslim woman in marriage? Nowhere in the world ‘talaq’ in any form is criminalized. Muslim countries where instant triple talaq is banned do not criminalize husbands for the offence. Instead the utterance of instant triple talaq is deemed null and void. Even in Pakistan, Bangladesh, Indonesia, Malaysia, among 19 countries, the mere pronouncement of talaq-e-biddat neither dissolves the marriage nor is it a cognizable offence. Arguing that criminalizing triple talaq will act as a deterrent is technically flawed and socially barbaric. Technically flawed in the sense that the issue of instant triple talaq belongs more to the purview of civil law than to the criminal law. Moreover, there are several provisions in the Indian Penal Code dealing with “offences relating to marriage”. Civil law is concerned with disputes between individuals, organizations, or both wherein the wrongdoer compensates the affected one. Criminal law implies the law related to the offenses or crimes committed against the Page 6

Editor’s Picksociety as a whole. A husband is not a terrorist. Or uttering a few words (talaq, talaq, talaq) which normally happensin rage or in a state of drunkenness does not amount to the crime committed against society as a whole.Marital discord is a common occurrence. No couple is ideal. Stef Daniel remarks that marriage is nothing but ‘allabout compromise’. In such relationship where differences between husband and wife are every-day-routine affairsand unavoidable, leading sometimes to divorce, should not push the husband to prison. This is morally outrageousand socially barbaric. There are even examples where a Muslim husband in anger delivers instant triple talaq to hiswife, has brought his wife back within hours when he realizes that the utterance was carried out in an inebriatedstate of mind.No substantial study before making the action criminal:If at all ‘instant triple talaq’ is to be criminalized, the state has to substantiate the data if the occurrence of it is wide-spread among the people affecting society as a whole. But the fact speaks otherwise. The government has not tabledany concrete figures before the Parliament. According to 2011 census data, the number of deserted Hindu womenwho live in deplorable conditions far exceeds the number of Muslim divorcees and deserted women.The numbers are staggering — out of 2.3 million separated and abandoned women, around two million are Hindus,while only 2.8 lakh are Muslims. Yet no attention is paid to them. Drawing on the 2001 census report, despite thehype, divorce among Muslims is much lower than in the majority community.If deserting the wife by Hindu husband is not a criminal offence, how can discarding her through instant triple talaqbe seen as one, when the impact of both upon victims is similar? The criminalization of instant triple talaq is nothingto do with the rights of women. The ulterior motive is questionable.The Misuse of law:In a society where mere suspicion of possessing beef can cost a Muslim his life, how will this move empower Mus-lim women within the community? In a charged atmosphere where ‘love jihad’ is orchestrated to target Muslimyouths in a relationship, how fair is this Bill to the idea of justice to Muslims?The Muslim community views it with suspicion and fears the law being a pretext to arrest Muslim men. Ayesha Kid-wai, professor of linguistics at Jawaharlal Nehru University, expressed her discontent: “The Bill is intended to fuel aculture of fear, of the state being able to enter your home and be able to incarcerate Muslim men”. Can a wife be everaccepted once a criminal prosecution against husband is initiated? The Triple Talaq Bill widens the gulf rather thanproviding the way for reconciliation. It intends to break up the family rather than striving to patch it up.What about the misuse of law? Over any trifle reason, a wife can exploit husband as in the case of dowry harassmentwhich empowers the police to arrest the husband and his relatives without a warrant. On the whole, both ‘instanttriple talaq’ and ‘criminalization of it’ stifle the rights of individuals. Both are unfair to humans. The former is irre-ligious and un-islamic while the latter is impulsive and cruel. The best approach to deal with the crisis is to bringthe grievances of instant triple talaq within the Protection of Women from Domestic Violence Act (2005). This is auniform statute that all women can use to enforce their civil rights, including Muslim women who have been givenoral talaq.At the same time, Muslim Personal Law Board which is becoming out of sync with ground reality day-by-day mustpronounce distinctly that the practice of instant triple talaq is un-islamic, and therefore it is deemed null and void (aspracticed among 19 Muslim countries in the world).Senior advocate, Indira Jaising, remarks: “The moment the magistrate declares the divorce null and void, the woman has thestatus of a wife and in her capacity as a wife she is entitled to unrestricted access to the resources of the family, she’s entitled toher matrimonial home, she’s entitled to much more than a ‘subsistence allowance”.The problem over instant triple talaq has aggravated due to the confrontational attitudes of Muslim leaders in gen-eral and Muslim Personal Board in particular with the government. Instead of engaging with the government andassuring it of reforms (which are badly needed), the Muslim Personal Law Board chose to remain adamant over prac-tice of instant triple talaq.Time has not run out. Let the proposed Bill be sent to a select committee for further deliberations while the MuslimPersonal Board takes a step forward to address the issue positively within the community. Page 7

Libertatem Magazine - Edition 36L2e0g1a7l Recap ofBy Shubham Patel The year 2017, was full of new ups and downs in relation to the legal environment of the nation, with the ups vividly and elaborately outnumbering the downs. The nation saw various reformist laws being passed by the legislature on the one hand and several reformist judgments, recognizing the rights of the citizens being delivered Hon’ble Su- preme Court, on the other. Let us take a look at a few of these legal developments. Landmark Legislations/Regulations from 2017 February The Specified Bank Notes (Cessation of Liabilities) Act, 2017 This Act was enacted, repealing and replacing the ordinance in regard to the unprecedented and inordinate decision taken by the government in demonetization of the previously valid, Rs. 500 and Rs. 1000 currency notes. This Act was enacted retrospectively with an intention of curbing the possibility of rise of a parallel economy, which would deal with the earlier demonetized currency notes. The Act contains penal provisions which make way for fine to be imposed if a person knowingly or voluntarily, holds or transfers such notes. However, holding 10 or lesser number of such notes, irrespective of denominations, would not attract a penalty. Similarly, for study purposes, holding up to 25 notes is allowed. March The Maternity Benefit (Amendment) Act, 2017 The Maternity Benefit Act is one of the classical examples where the State acts to fulfil its role as a welfare state. The Act aims to protect the employment of women during the time of their maternity, to allow them maternity benefit – a fully paid absence from work, to take care of themselves and their children. The changes brought in by the Act were revolutionary. The Act now applies to all the institutions which employ 10 or more people. It increases the period of maternity leave to 26 weeks from the earlier limit of 12 weeks; however, this is applicable to first 2 children and after that, the allowed leave is of 12 weeks. The Act provides that establish- ments with more than 50 employees should have a crèche facility, where the women should be allowed to make 4 visits and feed their children during working hours. The Act also provides that the employer may permit the woman to work from home if it is possible to do so. Page 8

Featured StoryAprilThe Finance Act, 2017Finance Act brought in certain gigantic and unprecedented changes in the history of India. Some of the key highlightsof the Act were:1. Insertion of Section 139AA in the Income Tax Act;2. Prohibition on cash payments beyond certain limits;3. Merger of certain quasi-judicial tribunals; and4. Amendment in rules of funding of the political parties.The GST ActsIn order to bring uniform Goods and Services Tax, four laws were passed. These were, The Central Goods and Ser-vices Tax Act, 2017, The Union Territory Goods and Services Tax Act, 2017, The Integrated Goods and Services TaxAct, 2017, and The Goods and Services Tax (Compensation to States) Act, 2017. These legislations deal with tax levyby Centre, inter-state supply and union territories respectively. The last act provides the mechanism to compensatethe States for their losses.These Acts were enacted to take the country closer to indirect tax reforms and make the domain of indirect taxes lesscumbersome and easy to follow and understand. The GST subsumed Central Excise, VAT, Service Tax etc. to create auniform market.The Mental Healthcare Act, 2017The Mental Healthcare Act was one of the path-breaking legislative changes brought in the Indian scenario. The Actintended to change the way in which mental illness is looked upon. It extended the benefits of the Right to Life tomentally ill people and brought the law in line with the UN Convention on the Rights of Persons with Disabilities(UNCRPD).The Act tries to prevent discrimination and harassment of the people falling within a specified category. It is broaderin its scope and ambit than the earlier law, the Mental Healthcare Act, 1987, which only provided general protectionagainst indignant and cruel treatment.In one of the bolder steps, the Act decriminalizes the attempts to suicide and presumes persons making such at-tempts to be suffering from stress. Under the Act, the duty is cast on the government to provide care, treatments, andrehabilitation to such persons.The HIV and AIDS (Prevention and Control) Act, 2017Human Immunodeficiency Virus and Acquired Immune Deficiency Syndrome, or HIV AIDS, remains one of themost deadly and incurable diseases in human history. The person who is unfortunate enough to acquire this diseasewas further subjected to various forms of discrimination from various sectors of the society. This Act was passed in abid to control the spread of HIV AIDS and also to protect human rights of people who end up affected by it.The Act takes due consideration of the privacy of the HIV AIDS affected persons where it states that the disclosureof the fact that a person is affected by AIDS shall be done only either after his consent or after a Court Order. It alsorecognizes the right of the affected person to not be excluded from the shared household and provides that he wouldbe able to use the said household in a non-discriminatory manner.The Act also makes the publication, propagation, advocacy or communication of the feeling of hatred against anyHIV AIDS affected person a punishable act, with punishment being imprisonment, which can extend from 3 monthsto 2 years or a fine which may extend to Rs. 1 Lakh.JulyThe Admiralty (Jurisdiction and Settlement of Maritime Claims) Act, 2017The Act seeks to repeal antique laws like the Admiralty Court Act, 1861, the Colonial Courts of Admiralty Act, 1890,and to bring the law in line with the present day global context.Due to the nature of the previously prevalent laws, the matters related to admiralty disputes could only be decidedby the High Courts of Bombay, Calcutta, and Madras. This situation created a state of affairs where there was lackof proper governance. However, now the jurisdiction is extended to the High Courts of Karnataka, Gujarat, Kerala,Orissa, Hyderabad and other High Courts, as notified by the Central Government. This jurisdiction extends up to Page 9

Libertatem Magazine - Edition 36 the territorial waters. Further, the Act is an attempt to consolidate the existing laws relating to Admiralty juris- diction courts, proceedings on maritime claims, the arrest of the vehicle and related issues. The Footwear Design and Development Institute Act, 2017 The Act provided the Footwear Design and Development Institute (FDDI) the status of the ‘Institution of Na- tional Importance’. FDDI was granted this status under the Ministry of Commerce & Industry. The main functions of the FDDI would now be related to design and development of footwear and leather products, preparation of curriculum in that regard and development of an international center in the leather sector. The FDDI would now be able to grant degrees, diplomas, and certificates in various programmes. August The Indian Institutes of Information Technology (Public-Private Partnership) Act, 2017 The Act declares the pre-existing 15 Indian Institutes of Information Technology (IIITs) established through public-private partnership as ‘Institutions of National Importance’. This would allow the IIITs to use the no- menclature of Bachelor of Technology (B.Tech), Master of Technology (M. Tech) or Ph.D. degrees as issued by other Institutions of national Importance or Universities. The Banking Regulation (Amendment) Act, 2017 The Act inserts certain provisions to empower the Reserve Bank of India to give directions to banks to act against loan defaulters. The Act seeks to resolve the issue of stressed assets and for this purpose, allows RBI to issue directions to banks for resolution of stressed assets. The Act also provides that if the proceedings are to be started, they would be initiated under the Insolven- cy and Bankruptcy Code, 2016. The Insolvency and Bankruptcy Code, 2016 is known for bringing in stricter timelines for resolution of insolvency processes. Hence, it can be seen that the major emphasis is also on time- bound resolution of stressed assets. December The Indian Institutes of Management Act, 2017 This Act declareS the 20 existing Indian Institutes of Management (IIMs) as ‘Institutions of National Impor- tance’. This confers the power of granting degrees to the IIMs, which earlier were only entitled to grant post- graduate diplomas. Landmakr Judgments from 2017 January Abhiram Singh v. C.D. Commachen & Ors. A 7-Judge Constitution Bench of the Supreme Court, while interpreting section 123(3) of the Representation of Peoples Act, by a majority of 4:3 held that the practice of seeking votes in the name of religion is a corrupt prac- tice. The case was filed after BJP leader Abhiram Singh’s election in 1990 Maharashtra Assembly was set aside on the ground that he appealed to the voters on the basis of Hindu Religion. The minority opinion, however, was that such an interference by the Court would amount to ‘redrafting’ of law by the judiciary and therefore, such issues should be left for the legislature to decide. Krishna Kumar Singh v. the State of Bihar A 7-Judge Constitution Bench held that re-promulgation of an ordinance by the legislature is against the Con- stitution and the democratic process. The court deemed it akin to fraud upon the Constitution and subversion of democratic process. The Court further laid down that the satisfaction of President (u/r Art. 123) and Governor (u/r Art 213) while issuing Ordinance is not immune from judicial review.Page 10

Featured StoryVitusah Oberoi v. Court of Its Own MotionA Bench headed by the then Chief Justice of India, J. T.S. Thakur held that a High Court cannot initiate con-tempt proceedings or punish for the contempt of the Supreme Court. The SC held that the High Court’s powerunder Article 125 of the Constitution does not extend to punishing for the contempt of a superior court. Thebench further held that if, despite having powers, the Supreme Court does not invoke contempt proceedings,no other court can do so.The SC quashed the order of the Delhi High Court which found the Editor, Publisher, and Cartoonist of the‘Mid-Day’ guilty of contempt over publishing a cartoon related to a former CJI.FebruaryState of Karnataka v. Selvi J. JayalalithaThe Division Bench of J. PC Ghose and Amitava Roy, Supreme Court, restored the conviction and sentence im-posed by the trial court in the disproportionate assets case. By the judgment, the court affirmed the convictionof V.K. Sasikal, Ilavarasi & Sudhakaran. The proceedings against Jayalalitha were abated due to her death.Thus, as per the existing laws, V.K. Sasikala had to serve 3 years and 6 months in jail, as she had already servedaround 6 months in jail. She would further be disqualified from contesting elections for the next 6 years.T.A. Kathiru Kunju v. Jacob Mathai & Anr.The Supreme Court held that mere negligence or error in judgment on the part of an advocate would notamount to professional misconduct. The view taken by the Disciplinary Committee that the appellant was anadvocate, he should have been more careful and therefore was guilty of gross negligence, was rejected by thecourt.MarchHussain v. The Union of IndiaWhile continuing with a strict view on strikes by lawyers and suspension of the Court work on different pre-texts, the Division Bench of J. AK Goel and J. UU Lalit held that such strikes and suspensions of work are illegalin nature.Union of India v. Besco Ltd.A Division Bench of the Supreme Court, upholding the judgment of the High Court which nominated an inde-pendent arbitrator, held that, even if the agreement between the parties specified an arbitrator, the Chief Justiceor the designated judge is free to appoint an independent arbitrator, after due regard to the qualifications hasbeen paid, and if the circumstances require the same.AprilM.C. Mehta v. The Union of IndiaThe Supreme Court by this landmark judgment took another step forward in regard to environmental pro-tection and enforcement of emission standards. Taking into consideration the rising levels of pollution in thecountry and how it has become a problem in certain areas of the nation, the court held that from April 1, 2017,only vehicles compliant with BS-IV standards shall be manufactured, sold and registered across the nation, thusputting a complete stop on any transaction in vehicles of the old BS-III standard.The court herein also rejected the contention of the automobile manufacturers that they should be allowed tosell the BS-III vehicles till the accumulated stock lasts. This leads to massive clearance in a stockpile of automo-biles towards the end of March and starting of April, 2017.Bhagwati @ Reena v. Anil ChoubeyThe Supreme Court held that at the time of marriage if the husband was a major and the wife was a minor, thenthe husband cannot seek annulment of marriage with this wife on the ground that she was minor at the time ofmarriage. It is only the minor spouse who has the right to seek annulment of marriage.May Page 11

Libertatem Magazine - Edition 36Mukesh & Anr. v. State for NCT of Delhi & Ors.The Supreme Court upheld the death penalty awarded to the accused of the Nirbhaya Rape and Death case.The judges, J. Dipak Mishra, J. R. Banumathi, and J. Ashok Bhushan, all gave a unanimous verdict and J. R.Banumati wrote the concurring judgment.The accused pointed out various mitigating circumstance, like his young age, family conditions, and ill-healthof parents etc. However, the court after considering both aggravating and mitigating circumstances, came tothe conclusion that the aggravating circumstances outweighed the mitigating circumstances. Resultantly, theCourt confirmed the death penalty.In Re: Shri Justice C.S. KarnanIn an almost unprecedented event, a 7-Judge Bench of the Supreme Court held a sitting judge of the CalcuttaHigh Court, J. C.S. Karnan, guilty of contempt of the Court and sentenced him to 6 months of imprisonment.JuneBinoy Viswam v. Union of India & Ors.The Supreme Court, while looking into the validity of the Section 139AA, which was inserted by the FinanceAct, 2017 and mandated the linkage of Aadhaar with Income Tax returns held that the provision is valid innature and passes the test of constitutionality. However, at the same time, it was also said by the Court that thisprovision would not have a retrospective effect.The Court also pointed out that though the provision in itself is constitutional, it hinges upon the constitution-ality of the Aadhaar, which itself is challenged. Hence, there shall be partial stay enforcement of this provisiontill the outcome of the judgment on the validity of Aadhaar.JulyRajesh Sharma v. State of U.P. & Anr.The Supreme Court, taking into consideration the rampant misuse of Section 498A of the Indian Penal Code,issued new guidelines regarding the registration of FIR as well as arrest in ases falling under this section.The court, taking into consideration that the Section has been widely used to harass families, passed guidelinesabout the establishment of Family Welfare Committees in each district by DLSA, which would primarily lookinto complaints and prepare reports on factual aspects. The Committees would also give their opinions andit is only then that the matter would kick into motion. Till the report of the Committees is received, no arrestshould normally be made.AugustShayara Bano v. Union of India & Ors.The Supreme Court in a landmark judgment declared that the practice of instant Triple Talaq is unconstitution-al. The Judgment was passed with 3:2 majority.The majority, while deciding the validity of Triple Talaq, gave different reasons. J. Nariman and J. Lalit heldthat the practice is unconstitutional as it violates Article 14 of the Indian Constitution which provides Right toEquality to each and every citizen of the nation. Whereas J. Joseph struck the practice down as, in his opinion,it went against Shariat and Quran.Justice K.S. Puttaswamy v. Union of India & Ors.In a unanimous judgment delivered by 9:0 majority, the Supreme Court declared that the Right to Privacy is aFundamental Right under the Article 21 of the Indian Constitution, thus making privacy an intrinsic part of thelife and liberty of a person.In doing so, the 9-Judge Bench overruled the earlier judgments in MP Sharma and Kharak Singh cases.Rakesh Kumar Paul v. the State of AssamThe Supreme Court held that, an accused is entitled to statutory bail/default bail under Section 167(2)(a)(2) ofPage 12

Featured Storythe Cr.P.C. if the police fails to file a charge sheet within the time period of 60 days of the arrest of the accusedprovided the offence for which the accused is guilty is punishable with imprisonment up to 10 years.OctoberIndira Jaising v. Supreme Court of IndiaIn what can be considered one of the most important judgments from the perspective of the Bar, the SupremeCourt brought in a new mechanism for designating the advocates as seniors. This was done in a bid to bring intransparency into the process. It was ruled by the SC that all the matters related to the said designation wouldbe dealt with by a committee headed by the Chief Justice. Two senior-most judges, along with the AttorneyGeneral and a member of the Bar would form the five-member committee, which would deliberate on the mat-ters of designation.It was further provided that the same process was to be followed in all the High Courts as well.DecemberToyota Jidosha Kabushiki Kaisha v. M/S Prius Auto Industries LimitedThe Supreme Court in yet another path-breaking judgment held that a mark maybe well-known abroad, butthat fact does not mean that the same was known in India. The person who is claiming infringement mustprovide that he had acquired goodwill and reputation in India. It was reiterated that IP rights are territorial andnot global in nature, and in order to prove that the infringement was existing at a place, it must be proved thatat the time when the alleged infringement started, there was goodwill which existed. Libertatem Magazine wishes you Page 13

Libertatem Magazine - Edition 36 Poverty Line in India: Time totake the Measurement Seriously By Vaibhav Sharma The progress of a nation is measured by the amount of welfare measures it provides to its citizens. The notion of state intervention in the well-being of its residents is an accepted norm across the world. This commitment towards the betterment of the people’s lives is most pronounced in the democratic systems of government. In- dia, being the largest democracy in the world has the obligation to take concrete steps for the improvement of the citizens’ standard of living. The country has undisputedly done tremendous progress in the fields of science, technology, medicine, defence and industrial production since the time she got independence from the clutch- es of the tyrant British. But one aspect where the growth seems to be elusive has been the glaring proportion of its population living in abjure poverty. India is today an unpatrolled example of dichotomy where on one hand there are world class airports, nuclear plants, defence installations and production houses; on the other, there are crores condemned to live a life of hunger and disease in ghettos full of filth and vermins. It is indeed ironic that the famous line of Charles Dickens’s novel The Tale of Two Cities, “It was the best of times, it was the worst of times” stands true for the people of the nation. For the rich and powerful, it is the time where they could mend ‘rules and the law’ with bribery and amass more wealth; however, the poor and destitute are condemned to the lives of perpetual misery and injustice.Page 14

News StoryThe bane of poverty is the biggest problem that stares the nation in the face, and is the greatest hurdle in the pathof development. The topic of ‘poverty alleviation’ has been hotly debated in the political arenas too where suc-cessive governments have usurped power on the lofty promises of solving the predicament. The slogan of ‘GaribiHatao’ is legendry, so is its cruel betrayal by all the governments since independence. Various welfare schemesand employment programs have been initiated across the decades, but they have failed to realise the desired re-sults. In spite of dismal success of the poverty alleviation programmes, the methodology adopted to measure thepoverty level is of great importance for planning future measures and reducing the number of poor in the nation.The article studies the various committees formed for the estimation of poverty and suggests the remedial mea-sures in the present methodology of the identification of poor in India.Methodology of Measuring Poverty in IndiaThe need to measure the poverty level in the country is paramount to devise targeted strategies for the reductionof rising poverty. The detailed study of the distribution is required to identify the vulnerable groups and providethem with extra benefits for amelioration. The first measurement of the poverty levels in India dates back to thenineteenth century when the nationalist economist Dadabhai Naoroji measured the income level required forsurvival on the basis of the 1867-68 prices. He calculated the level on the basis of the amount of money needed‘for the bare wants of a human being, to keep him in ordinary good health and decency’. The National PlanningCommittee (1938) formed at the Haripur Session of the Indian National Congress also calculated the money need-ed for survival in British India. The Bombay Plan (1944) put forward by the leading industrialists of the nation forthe economic development tried to assess the poverty levels. The staring feature of this exercise was that it tookboth the income as well as calorie intake criteria into account for the estimation of the poverty. Other than theefforts of the nationalists, the British Government did nothing to access the quantum of the poverty in India, lestto bring out the barbaric impact of its colonial rule on the indigenous people of India.After attaining Independence, the government took many steps for the measurement of poverty level across thenation. For the identification, the government has followed the tool called ‘poverty line’ which depicts the per-centage of population living in poverty from the total population. A working group of the economic experts wasmade in 1962 which was headed by Prof. D. R. Gadgil was formed for the identification of the poverty level. Theremarkable contribution to the study of poverty level in India was done by two independent scholars namely, VM Dandekar and Nilkanth Rath. Their 1971 study linked the ‘calorie intake levels’ with the poverty estimation.The result was the formation of a task force by the government in the year 1979 entrusted with the determinationof the ‘Minimum Needs and Effective Consumption Demand’. It was chaired by Dr. Y K Alagh and it broughturban-rural and age-sex demarcations into the poverty level discourse. The major step for the identification of thepoor came in the year 1993 when the Lakdawala Committee was appointed for the measurement of poverty level.The report of the committee was criticised as being detached from ground realities of the nation and the demandfor another estimation was raised.The present methodology adopted by the government for the measurement is based on the criteria of the Ten-dulkar Committee. In December, 2005 the Planning Commission (NITI Ayog’s predecessor) constituted an expertgroup led by Prof. Suresh Tendulkar for the computation of the poverty lines. The group submitted its report in2009 on the basis of the 2004-05 prices which were accepted by the Union Government. The next milestone wasthe 2009-10 Household Consumer Expenditure Survey by NSSO to update the prices levels with region wise vari-ations. C. Rangarajan Committee was instituted in the year 2012 for the poverty measurement. The distinguishingfeature of the report of the group released in 2014 was that it recommended that the poverty line must incor-porate a certain standard of nutrition, clothing, house rent, education and other non-food expenditure. It was amarked change for the prevailing position where the emphasis was only on the food expenditure computation.‘Poverty Level’ in IndiaThe official tool for the estimation of poverty in India being followed by the Union Government is the TendulkarCommittee (2009) report formula based on the 68th round of NSSO (2011-12). The official poverty line works outto be approximately Rs. 816 per person per month in rural areas and Rs. 1,000 per person per month in urban ar-eas at the 2011-12 price levels. The total percentage of population living below poverty line is 25.7% in rural areasand 13.7% in the urban areas. It compounds to 21.9% in the population of 130 crores. It totals to about 28.47 crorepeople living in poverty, which is more than the entire populations of most of the nations in the world. There isalso the glitch that the Union Government has not till now adopted the recommendations of C. Rangarajan Com-mittee for the new population levels which are most comprehensive and realistic as they take into account the Page 15

Libertatem Magazine - Edition 36 non-food expenditure along with the prescribed amount of calories, fats and proteins as per the ICMR standards. This methodology would total to the poverty line in rural areas to be Rs.972 and Rs.1,407 for the urban areas. But the problem is that it will increase the total proportion of the population living in poverty greatly. The new na- tion-wide percentage of poverty would amount to 29.5% (from the current 21.9%). Similarly, in the rural areas the percentage will be 30.9% while in the urban areas, it would be 26.4%. The non-adoption of new and reformed guidelines of the C. Rangarajan Committee by the Union Government is nothing but a cruel jugglery of figures to mask its monumental failure in poverty reduction. Another aspect of the problem is that no government would like to invite the ire of the electorate by adopting new guidelines because the blame for appalling poverty levels must be shared by successive governments spanning seven decades of Inde- pendent India. It must be pointed out that though the methodology of the Rangarajan Committee is renewed, it is still a far-cry from the global accepted norm of $1/day. However, acceptance of the Rangarajan recommendations would be a great step in the mission of poverty reduction. Need of ‘Political Will’ The governments have, over the years, introduced various schemes for the poverty reduction. The major ones being the National Food for Work Program, Swaranjayanti Gram Swarozgar Yojana, Indira Awas Yojana, Mid- day Meal Scheme, Public Distribution System (PDS), UJWALA Yojana etc. for the welfare of the poor people. The seminal contribution was made by the Mahatma Gandhi National Rural Employemnt Guarantee Act (MGNREGA) in providing assured 100 day employment in the rural areas. The initiatives of the ruling dispensation like Direct Benefit Transfer (DBT) scheme, SUBHAGYA Yojana, Stand-up India, Bharat Net and Jan Dhan Yojana are positive steps for the empowerment of the rural areas. The main hurdles in the path of the economic emancipation is the corruption and nepotism in the official working that results in most of the funds meant for the development of the poor going to the corrupt officials and ministers. The vast amounts of Non-Performing Assets (NPAs) of the Indi- an banking sector of about Rs. 7 lakh crores is enough to feed 84.54 lakh poor people for their entire lives (taking Rs.1000/month for 69 years). The political will to prevent misuse of the public money is totally absent. The instanc- es of about 44 deaths of the poor people for the chilling weather in Delhi in only 6 days (1st to 6th January, 2018) and spine-shivering news of the death of a school girl in Chhattisgarh for being denied government rations depicts the extreme apathy of the ruling class to the woes of poor. The government must also inspire austerity measures as any nation with 28 crores poor people must follow some economic propriety. Remedial Measures for Improvement The need of the hour is to sincerely pursue the policies of the government for the benefits of the poor. The bane of corruption must be reduced and the allotted money for the poor must reach its desired beneficiaries. The govern- ment must also stop its Frankenstein-like insistence on the Aadhaar card for the government benefits. The life of an Indian is too pious to be denied over non-production of the Aadhaar card. The judiciary must also improve its track record in reducing corruption. The wealthy corrupt officials and ministers go scot-free due to the elite army of lawyers and dilatory tactics. The government must also base its benefits schemes solely on economic basis. The ‘caste’ factor must be totally separated from the eligibility conditions when it comes to Below Poverty Line (BPL) in India. The economic incapacity and hunger hit people of all castes and religions equally hard. The government must also pay adequate attention to the implementation of the schemes, rather than solely focussing on outcomes and budgetary allocations. Stringent auditing of every rupee sanctioned for the poor along with timely supervision of the welfare schemes must be implemented. The use of economic tools like the Poverty Gap Index (PGI) which studies the inequalities in the income level of the population must also be studied while framing of the policies by the Union Government. The youth of the nation has a great role in building a better and more resilient nation. They must pledge to end the problems of corruption and nepotism. The people must also choose their political representatives wisely. The leaders who have been facing graft charges and those convicted in corruption cases must be socially boycotted by the public. The problem of poverty is multi-dimensional in nature and all the aspects of the economic incapacity of the people must be perused in great detail. If the government is able improve its welfare benefit delivery effec- tiveness and curb its wasteful spending in oath ceremonies, rallies and political publicity; only then the dream of happy and content population could be realised. We must remember that even on the glorious day of 15th August, 1947, Jawaharlal Nehru declared that we are redeeming our pledge ‘not completely, but in partial measure’. The people of India have been waiting for more than 70 years for the completion of that pledge, and it is high time we take concrete steps in heralding a golden future for the nation.Page 16

News StoryLibertatem Magazine ceberates its 3rd Anniversary with this edition Page 17

Libertatem Magazine - Edition 36 Leadership of Rahul Gandhi and theChallenges ahead for the Congress Party By Debajyoti Saha Recently, Mr. Rahul Gandhi was elected as 87th President of Indian National Congress. On 28th December 2017, he unfurled the flag on the 133rd Foundation Day of the Indian National Congress as the President of the Party. He had been handling the post of Vice-President of INC since January 2013. He took over the rein from his mother Sonia Gandhi, who had been the President of Indian National Congress for 19 years. She was elected Congress president in 1998. It was a moment of great responsibility for the young leader to take charge of the 132-year old political party. Mr. Gandhi is the sixth member of the Nehru-Gandhi family to occupy the prestigious post. There were many speculations as to who would qualify for the honourable vacancy. The consensus to elect the president emerged soon after the elections in Gujarat came to an end, i.e. in the month of December 2017. Although Bharatiya Janata Party won the high-voltage election, but the margin with which they won, was less commendable. Undeniably, Rahul Gandhi worked hard during the election campaign in Gujarat. Dismayed by formidable op- ponent, the Congress Party joined hands with Patidar Anamat Andolan Samity (PAAS) and its leader Hardik Patel to check the victory march of BJP. The joint campaign also focussed on issues such as crop prices, impact of demonetisation, unemployment and social discriminations. However, the exit polls showed that the BJP would make a clean sweep by winning more than 60% seats. Con- trary to expectations, the results were different. Gujarat has been the land of Narendra Modi for nearly one and a half decade. Though the Congress party and its allies lost the game of number in elections, morally Rahul Gandhi kindled a ray of hope for the party which could eventually change the game of electoral drama in the 2019 parliamentary elections. He attacked BJP by accusing it of telling lies. He stated that the BJP was using unfair means to meet its political goals. He also accused the central government of having undermined the Constitution. Mr. Gandhi asserted that the Congress moved India into the light of 21st Century but Modi’s Government had taken India to its medieval past where people were not having the freedom to do whatever they liked. He also alleged that BJP was harassing people for speaking against the Government. Instead he emphasized that India’s history was based on love and compassion. Unfortunately, the ruling Government was not doing enough to preserve it. He lamented the existing quality of political discourse in the country. He recalled how politics which once be- longed to the people, was now being used against them. Politics isbereft of the kindness and truth that once it had. He pledged to reinvigorate the Congress Party as a party of youths that will promote peace and harmony among people.Page 18

News StoryWhile Rahul Gandhi promised to infuse youth power into the grand old party and harshly criticized the oppo-nent, his statements are not backed by facts. Prima facie, it may seem that the BJP-rule is autocratic in nature, butit is also a truth that India during such rule has made tremendous progress in different fields of national signifi-cance as those of GDP, fewer imports, promotion of indigenous industries and so on.The Congress Party which ruled India for a decade from 2004-2014 was mired in many scams. It came into lightthat many of those scams were under the BJP rule.Every Political Party has its own ideologies which might not be accepted by everyone. It is hoped that the Con-gress Party learns from its past mistakes and realigns itself in the larger interest of the nation to serve it better. Therejuvenated spirit will truly put the party back on track and will put it in a good position to reconquer all the lostterritories in the next State and Union elections.But a lot of groundwork needs to be done for the same, though Rahul Gandhi has been in politics for a long peri-od. In the last few years, Rahul Gandhi has been in controversy due to his statements against the ruling party.The decision to elect Rahul Gandhi as the president of the Congress Party is apt taking into account the currentcondition of the Party. He was truly the most eligible candidate for the coveted post. However, nothing can bepresumed of quick results at such an early stage. We have to be optimistic to get a rejuvenated Congress Party. Page 19

Latest trends inLibertatem Magazine - Edition 36 Cryptocurrency By Advocate Kanishk Agarwal, Founder, CriTaxCorp (A Law Firm) In today’s generation every citizen has moved towards digitalization so crypto currencywhich is entitled as ‘util- ity settlement coin’ came with new trend which help in secure transaction. It is playing a huge role in changing today’s economy. Crypto currency is a digital or anyone can say it is virtual currency that uses cryptography for security. It’s nearly impossible to counterfeit because of this security features. Bitcoin The person who came up with the idea of crypto currency was Satoshi Nakamoto, the unknown inventor of Bit- coin. This Bitcoin was launched in 2009. Satoshi said he developed “A Peer-to-Peer Electronic Cash System”. The user has to use their credit or debit card to exchange fiat currency for Bitcoin or can mine bitcoin through mining process. User can buy as less as upto 8 decibel points making it viable for any person to buy even with smallest of investment. After request is sent from one user to another user the same is reflected in the blockchain network and the said transactions are approved by the “miners”, increase in transactions and mined coins makes the min- ing of the bicoins even more difficult and requires more miners to join the network. Post approval money will be taken from user in exchange of Bitcoin. At the time of selling, user can use same application as well in return of the cash value. Safety is no concern as there is cryptography which makes the transaction secure and safe. But to process Bitcoin is slight difficult as computer has to solve difficult mathematical problem with a 64-digit solution this process is called hashing. After problem is solved then, one block of Bitcoin is process. The success of Bitcoin has spawned a number of competing crypto currencies. India is expected to lead the world in generating this value, as we are a developing country with a billion plus population that can infuse a huge amount of capital and general interest into any cryptocurrency making it a hit overnight. We have already seen it with Bitcoin, which has suddenly found thousands of new buyers in recent months. Initial Coin Offerings (ICOs) ICO’s are one of the noticeable trends of crypto currency. These are user or consumer friendly and have shred a new wave in crypto currency market. This has promoted game zone by specifying its promising attribute to- wards Game Protocol. The platform will provide game creators with the tools to advertise and distribute their work, while allowing developers to raise funds to implement their projects. ICO as a new business model lever- aging block chain technology will sustain as the digital way, combining crowd funding and new hybrid asset class of equity ownership and currency. Various ICO’s are paving way through a protocol which is followed through Eutherium. To understand it in lay- man terms eutherium is like google play store and in order to post your apps (ICO’s) the code of Eutherium is to be followed.However, a lot of scams have also been witnessed in this area with companies launching ICO’s and duping away with bitcoins of people. It is also seen that Government is also having a stringent view on ICO’s and will come with stringent rules and regulation in regard to the same to protect the interest of people. Denta Coin It’s a blockchain concept designed for Global Dental Industry. It is used worldwide by every individual. Denta coins focus on improving dental care and making its position worldwide. It is listed on Coin market cap and is traded on the following international exchange platforms: Cryptopia, EtherDelta, Mercatox and Coinexchange.Page 20

News StoryIn India Denta Coin collaborated with cryptocurrency exchange BuyUCoin for sale of their coins in India. A lotof people are also trying to understand the routes to launch ICO’s in India.Mutual Funds and Hedge FundsPeople are facing the issue with low interest rates on fixed deposits (F.D.) and small saving secure investment.But with the market followers Mutual Fund comes in the market with many questions in the mind, such as ‘Isit safe to invest in Mutual Fund’?, ‘Aren’t they investing in stocks’. Crypto currency Hedge Funds such as GodCoin, Icoshark are coming up which are investing in major initial coin offerings such as EOS, Tezos, Bancor,Tierion. Icoshark is managed by a group of experienced blockchain and financial industry experts and poweredby sophisticated analytical instruments.There are now more than 120 Hedge Funds focused solely on Bitcoin andcrypto currency.Crypto Currency ConsultantThere are various consultants who are advising the small time investors about which crypto currency to invest inand are earning consulting fee as well as some % of profits to be made by them with no share in downside. Theseconsultants study the market and understand the applicability of different alt coins and suggest as per theirknowledge and experience in the crypto industryTrading in crypto currency has surged because of extra ordinary returns. These returns have paved a way for alot of startups to mushroom and use the blockchain technology in various different manners however; most arestill hovering around buying/selling of Bitcoin per se. Even a lot of banks have accepted and adopted the blockchain technology innovated by Ripple and that is also one of the reason that it’s price has surged 84% in one daythis week.No doubt, government is yet to give its verdict on crypto currencies like Bitcoin and recent action ofsurveying activities by IT department yesterday on 9 exchanges in India is also an indication that government isbecoming pro-active and is looking into the subject. To conclude blockchain technology surely looks promisinghowever, crypto currency regulations are to be formulated by government which will decide how these trendsare to shape in future. Page 21

Libertatem Magazine - Edition 36 Madhya Pradesh’s New Rape Law: A Knee-Jerk Legislation Against A Setting Sun By Khushbu Shah The Madhya Pradesh Assembly in December, 2017 unanimously passed a bill which pertains to awarding death to those found guilty under the offence of rape against the girls aged twelve and below. With this, Mad- hya Pradesh becomes the solo state in the country where such rape offences will face the gallows. The Bill was passed without any hitches since the opposition too was in harmony with the Chief Minster’s view that, “Jo log 12 saal ki masoom bachhi ka balatkaar karte hain wo manushya nahi pishach hain unhe jeene ka adhikaar nahi” {The individ- uals who commit rape on 12-year-old girls are not humans but devils. They don’t have the right to live any more}. Capital punishment will be awarded to convicts under section 376 (A), which relates to rape, and section 376 (D, A), pertaining to gang rape. The State of Madhya Pradesh has consistently been a worse performer in ensuring women’s safety. The National Crime Records Bureau (NCRB) data for 2015 indicates Madhya Pradesh as the reporter of highest number of rape cases (4,391) in the country. Similarly, as per NCRB 2014 data, Madhya Pradesh reported 5,076 cases, accounting to/comprising of 14 per cent of the total rape incidents in India. However, this move of the Government is entrenched in its attempt to look tough on offences against women in the light of recent events. In October, 2017, the police stonewalled the filing of FIR of a 19-year old student who was allegedly raped near the railway station under broad day-light in Bhopal. The incident attracted the wrath of the entire nation placing/glorifying the inefficiency of police offices in lime-light and unnecessary delays by police in cognizable offences. The Legislation might help Government save its face; but, it fails to provide a solution to the issue at hand. The delay in filing FIR, treatment meted out to rape victims in police station and the paternalistic attitude of police officers, all are at the core of the problem here. These issues seem to preclude all. The entire discourse is directed towards the punishment deserved by rapist and not towards having access to justice in the first place. Punish- ment can be awarded only after the case has been registered at the police station, then brought to trial and decid- ed upon by the Judiciary. However, if the first condition of this chain i.e. the police officers fails to performs of their duties, then any change to the quantum of punishment will bring a very little change to the ground reality for women. Scope of the Legislation: A Potentially Counter Productive Move This Legislation will also apply to cases wherein the rape victim is below 12-years of age. Statistically, children between the age of 5-12 possess a highest risk of physical sexual abuse. Majority of these offences are committed by family members who are in a position of trust or authority. Coming forward to report cases against their own family members in India where social structure is characterized by close-knit families, is difficult. The attempts are made to silence the voices owing to the taboo around rape and sexual abuse. This punishment will further preclude individuals to come forward with complaints as the/in case the offender is a close family kin. Also, the enhancement in the quantum of punishment is of no avail in getting rid of the taboo, which is all pervasive in Indian society. Facets of Capital Punishment: Humanitarian Concerns One of the main functions of modern-day punishment is reformation and deterrence. The former aims at chang- ing the character of the convict and the latter works towards setting an example in the society and deterring any individual from committing the same crime. However, in case of a deathPage 22

News Storypenalty, there is no opportunity given to the convict to lead a changed/reformed life after completion of his/her punishment. The Law Commission report released in 2015 has busted the myth that Death penalty acts as adeterrent.One understands law, justice and accordingly individual/societal responsibility dictates their view on capitalpunishment. The society at large cannot get any by labeling the rapists as either ‘evil’ or ‘pishach’, because as pera rational argument, they too are a part of society we all reside in. The process of socialization has an impact onthe actions of the individual. This is not to say that there exists no individual responsibility for one’s own actions,but to make a point that criminal activities are as much as societal responsibility as individual responsibility.Even the Supreme Court acknowledged that being on death row in India amounts to “near torture” for the con-vict. The ends of reducing crimes cannot justify the means.The DissentHuman Rights lawyers, activists and various NGOs have voiced their concern and discontentment towardsthe Bill. One Asmita Basu, programs director, Amnesty International India, in a statement said, “the governmentshould, instead, focus on ensuring the certainty of justice rather than increasing the severity of punishment. The JusticeVerma Committee and India’s Law Commission have both opposed the use of the death penalty for crimes involving sexualviolence.” The death penalty is the ultimate violation of the right to life.”The decision ofs Madhya Pradesh to regard Death Penalty as a viable and an apt solution in an era where theInternational Community is deliberating on doing away with this inhumane act altogether has surprised them. Page 23

Published by Libertatem Media Group,Anand Square, Tragad, Ahmedabad 382470 Gujarat, India Read the magazine on© All Rights Reserved by Libertatem Media Group [2018]

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