Suggestions for criminal amendments (with email ids of ministers)
Suggestion
1 : Gender Neutral IPC Sections 354, 354A, 354B, 354C, 354D, 375, 376, 509 as
also suggested in Criminal Law Amendment bill of 2019
Gender
neutral IPC Section 354, 354A, 354B, 354C, 354D, 375, 376, 509 by replacing
'woman', 'man' with 'person' / 'any person' and any gender biased pronoun like
'he' / 'she' with neutral pronoun 'they' / 'them' / 'their' / 'this person' as
appropriate along with definition of modesty to be inserted in S 2 of IPC.
Similar demands were also raised in Criminal Law Amendment bill of 2019 tabled with
full details and it was tabled as private member bill by KTS Tulsi which can be
referred as part and parcel of this suggestion. The key idea is to recognize
that all three genders are equally capable of committing any crime and it is
against basic principles of constitution to provide protection to a particular
gender from being accused of a crime especially in modern day and age when a
simple web search is required to find the crimes of sexual violence committed
by women. We need laws to handle crimes of present modern as well as futuristic
society.
A. Laws and acts should be
directed towards the malaise, social and criminal issues and not focused on a
gender.
B. Section 354 defines the
crime of assault or criminal force with intent to outrage modesty.
C. Section 354A
defines the crime of sexual harassment which is like unwanted physical contact,
demand for sexual favors, making sexual remarks or showing unwaned explicit
videos.
D. Section 354B defines the
crime of assault or use of criminal force with intent to disrobe.
E. Section 354C and 354D
defines the crimes of voyeurism and stalking.
F. Section 375 defines the
crime of rape and section 376 defines the punishment for rape.
G. Section 509 defines the
crime of using Word, gesture or act intended to insult the modesty of a
woman. There's no reason why a word or gesture cannot be made by any woman to
intrude upon the privacy of a man or to insult or outrage the modest of a man.
H. Following definition of
Modesty is as proposed in Criminal Amendment bill 2019
I.
"Modesty is an attribute which attaches to the
personality with regard to commonly
held belief of morality, decency and integrity of speech and behavior, in any
man, woman or a transgender"
J. It is important to not
exclude men and transgenders as they also have modesty, dignity, respect and
feelings attached with them.
K. A crime should be
defined based on the possibility. If it is possible to commit a crime, it
should be defined in IPC and it should be possible to report it by any citizen
of the country.
L. We do not need even a
single example of such an event to define the crime.
M. If we think it will be
rarest of rare cases, say 1 such cases among 1 million total cases, where a man
is sexually harassed and yet for the sake of argument, we accept it to be true,
yet even that one male deserve justice and should be able to report the
crime.
N. Today, we do not even
allow males to report the crime but silently suffer which not only result in
high suicide rates among males and transgenders but also, other diseases
related to stress and lower quality of living. India ranks 147th among 157 countries
in Oxfam word inequality index. Until we let men report such crimes, we have
practically no evidence to say whether it is rarest of rare for men to report
such issues or it has significant probability.
O. We should seek answers
to following questions:
i.
Can we say that a woman has no sexual desires and cannot commit
sexual offenses?
ii.
Can we say a woman cannot demand sexual favors from a man?
iii.
Can we say it is impossible for a man to get sexually harassed by
a woman? The keyword is impossible or possible but rarest of rare.
iv.
Can we say that a woman will never stalk a man? Consider example
of a scorned lover stealing the private information of her boyfriend? Is this
an impossible or nonsensical event or does this crime make sense with some
possibility no matter how low? If it's possibility, then why not make it gender
neutral where both victim and perpetrator can have ANY GENDER.
SUGGESTION
2: Define False case Punishment individually for most misused draconian
sections like IPC 376, IPC 498A, DV Act, SC/ST Act, UAPA Act
A. Some section are highly
misused to settle scores and to blackmail/extort.
B. The blanket sections of
Chapter X and XI of IPC do not provide sufficient remedy and power to court to
prosecute the false accuser.
C. The use of Chapter X and
XI often needs start of fresh trial and a complex procedure involving reporting
by police in section 182 for prosecution of false accuser.
D. That is why, prosecution
u/s 182 and 211 of IPC read with S. 250 and 358 of CrPC is almost ZERO. There’s
separate need to study how to improve these sections but the punishment for
false complaint of a draconian/heinous crime should also be draconian and
cannot be merely handled by the blanket sections. This is very important to
reduce case overload and ego/vendetta based litigation to destroy a person.
E. A falsely accused person
gets acquitted after a long time from lower court and sometimes, if the
opposite party appeals the acquittal in high court and supreme court, it can
take more than a decade.
F. At the end of it, the
falsely accused person has no resources or motivation to seek justice and
prosecute false accuser.
G. That is why, it is
important to define the punishment for false accusation as part of commonly
misused draconian laws so that court can either convict the accused or if the
facts & evidences point to the false accusation, the court should have the
power to immediately convict the complainant without need for any fresh
proceedings.
H. This is going to
radically help our country and raise the justice delivery index exponentially
where the innocent accused would have hope to get some retribution for the
harassment caused to him.
SUGGESTION
3: Scrap/Remove 114A of Indian Evidence Act which violates the most
fundamental principle of criminal jurisprudence viz. presumption of innocence /
innocent until proven guilty
Reason:
1. 114A transfers the
burden of proof from victim to the accused. There was an amendment to it post nirbhaya case as
part of Criminal Law Amendment of 2013 by substituting it with a new one stating
that in prosecution for rape under clause (a) to (n) of section 376(2) IPC,
where sexual intercourse by the accused is proved and the question is whether
it was without the consent of the woman alleged to have been raped and such
woman states in her evidence before the court that she did not consent, the
court shall presume that she did not consent;
2. Let
that sink in! A man can be assumed to be guilty merely based on statement of a
woman. In the greatest of all countries of the world known as INDIA! This amendment attacked the
most fundamental law of criminal jurisprudence, namely, presumption of
innocence and assumes man to be guilty just based on statement of a woman.
3. This amendment has
resulted in violation of Art 11 of Universal declaration of Human Rights,
International Covenant on Civil and Political Rights, art. 14, paragraph 2,
Convention for the Protection of Human Rights and Fundamental
Freedoms of the Council of Europe says (art. 6.2).
4. India is accountable
to the world for this violation for not protecting this fundamental right. The
reason is best summed in preamble of Universal declaration of Human rights:
"Whereas it is essential, if man is not to be compelled to have recourse,
as a last resort, to rebellion against tyranny and oppression, that human
rights should be protected by the rule of law,"
5. This was introduced in
2013 due to Justice Verma committee recommendations which went to propose huge
reforms in criminal justice by just gathering feedback in bare 29 days during
highly passionate times on the back of a rarest of rare crime.
Suggestion
4: Gender Neutral DV Act
Reason:
· PWDVA 2005 allows wives
to report physical, emotional, verbal or economical violence against their
husbands. But if the husbands get physically beaten or emotionally harassed or
verbally/economically harassed, then it is not possible for husband to report
it or approach court for redressal. This directly violates Article 14, 15 and
21 of Indian constitution.
- If we seek answers to following
question, the need for this suggestion can be more clear:
- Can we say that there's no
woman in the world who is capable of beating her husband?
- Is it true that in 100% of
households, husbands are physically stronger than wives? The answer is
obviously No.
- There are several real
instances captured on cctv where woman have been found to beat their
husbands as well as mother-in-law/father-in-law.
- WHY do we want to exclude
these people from tasting the nectar of Justice? Is this the Independent
India our ancestors hoped for?
Suggestion
5: Make S 498A gender neutral
498A
- Husband or relative of husband of a woman subjecting her to cruelty.
Reason:
Please
consider the reasoning as below:
1. Have you ever come
across any case where wife & her relatives harassed or subjected him to
cruelty for demanding money & other gifts for wife's relatives. I can quote
examples of famous bollywood actor Sandeep Nahar who left videographic evidence
of accusing her wife and her mother of harassing her with exorbitant demands
due to which he died.
2. It is inhuman for
lawmakers to exclude husbands from reporting the crime if they are being
harassed by wives. I strongly condemn subjecting a woman to cruelty after
marriage but I also strongly condemn any woman subjecting a husband to cruelty.
And as far as decision to include such crime in IPC, since it is beyond doubt
that there's a possibility of existence of such a crime in our society, so we
should replace all gender-specific words in 498A with their gender neutral
equivalent. i.e. husband/wife with spouse, woman with person etc. as
appropriate.
3. If there's any doubt
still left, this link made the efforts to
collect such news and provides example of 60 such cases which came in popular
media in year 2021. The actual count is not known since we do not even allow
reporting of this crime which is shameful for the world's biggest democracy!
Suggestion
6: Amend S 360, 361 and 362 child kidnapping & abduction laws to include
cases where child is away from either parent without the consent of any of the
parent. [CRIME OF PARENTAL ALIENATION]
Reasons
A. The problem is when
husband and wife runs into a marital dispute and gets separated, one of the
parent keeps the child with them and sometimes stops the other parent from
meeting the child.
B. Since a parent is also
legal guardian of the child, this prevents the legal guardian from even seeing
the child. Sometimes, due to court orders or other pressures, the non-custodial
parent is able to meet the child but the child refuses to meet due to poisoning
of mind of the child by the other parent.
C. This result in mental
and emotional abuse of the child as the child does not get the love and
affection of a parent that a child deserves and needs for his normal growth. This
fits into the basic definition of crime according to our IPC.
D. This is called “Parental
Alienation” and there are many scientific studies that have documented the ill
affects of parental alienation on the child and its relationship with teenage
crimes and other emotional/mental/physical health issues at later stage in
life.
E. It can be said that this
is the most cruel & inhuman of all crimes defines in IPC where a parent has
to grieve for a living child due to inability to meet.
F. The procedures to go to
court are complex and time consuming and the courts have also reiterated the
need to handle this at police level where a decision to stop parental alienation
and let parent meet the child be handled by police. Often police lacks the law
under which they can take action in such cases.
G. A country that cannot
protect its children has no reason to exist.
Proposal:
1. Amend S 360 which is
related to kidnapping of the child from India to include the act where one
parent takes the child out of India without the explicit consent of other
parent.
2. Amend S 361 which is
related to Kidnapping from lawful guardianship and S 365 which
includes Kidnapping or abducting with intent secretly and wrongfully to
confine person
to include the case where a parent stops the other parent from meeting
the child with the intent to separate the child from other parent and causing
parental alienation and resulting mental & emotional abuse of the innocent
child.
3. Amend S 362 which is
related to abduction using force or deceit to include the case where one parent
steals the child out of custody of other parent using force or deceit. There
are several examples where one parent comes with goons to other parents house and
take away the child. This amendment will handle that crime.
Suggestion 7 : Time bound trial of
criminal offenses
Reasons:
Time
bound trial is needed so that aspersions are not cast on falsely accused people
which prevents them from leading a normal life with dignity by curtailing their
right to find a new job as everywhere employers gets doubtful on hearing about
criminal cases, right to travel as bail conditions are often stringent. Time
bound trial along with strong punishment for false cases is the need of hour.
Suggestion
8 : Amend Section 113B of evidence act and IPC 304b, S 29 & 30 of POCSO Act
Reason: I would not give detailed reasoning here but
in all the mentioned sections, we are inverting the presumption of innocence to
presumption of guilt i.e. guilty until proven innocent. Take the example of
abetment of suicide or suicide due to cruelty, the leading cause of suicide in
medical research is depression or mental state of a person. If an adult is
mentally not well (brain is just one organ similar to heart, lungs, kidney etc.
all of which develop issues) and kills himself/herself, it is arguable that it
can lead to injustice to an innocent person who is blamed for it. A person with
healthy state of mind can be tortured beyond imagination but they will not
suicide and wait for the good times. The goal is not to blame the victim but to
prevent injustice to accused because there’s no easy way to influence an adult
fully-grown mind to attempt suicide. Laws can be better in this area.
Suggestion
9 : Amend S 358 of CrPC to increase compensation for false arrest from 100 rs!
Reason
The
compensation should at least be double of the amount that a person earns on
average based on last 3 ITRs and it should be some minimum decent amount say
50K.
Suggestion
10 : Right to virtual hearing, access jimni orders/judgments online instantly,
make online submissions can be a part of CrPC
Reason: Our legal system is strongly lagging the
adoption of digital technology and it is most critical for India due to limited
court infrastructure which cannot be scaled easily and the huge population who
is going to litigate more with rise of “educated illiterates”.
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