January 1, 2009
By Syed Akbar
The Britishers prohibited assembly of more than five persons on Indian streets under Section 144 of the Code of Criminal Procedure. The aim, when the CrPC was first devised in 1861, was to curb any Indian uprising against the British sovereignty.
The British government feared that a group of five or more Indians would create trouble for it. The colonial rulers might have introduced the proviso as they were not well-versed with the local languages and thus, unaware of what was transpiring among Indians when they gather in streets in groups.
Almost 150 years have passed since the legislation was promulgated and yet the government in democratic India feels comfortable with it. Section 144 of CrPC continues to be the most widely used provision of law, of course during emergent situations, across the country.
Continuing the British legacy, the Indian government introduced the Salt Cess Act, barely five years after the assassination of Mahatma Gandhi, who fought against the British over imposition of tax on salt. The Salt Cess Act 1953 is still in vogue.
Similarly, gay and lesbian relationship is now scientifically recognised as a "biological behaviour" and yet the Indian government continues with the more than century old British law which declares unnatural sex a punishable offence. Live-in relationship has become a common phenomenon and the present Indian laws do not recognise it, thereby denying benefits to the couple, particularly the woman partner.
Sixty years after Independence, the legacy of the British laws lives on in India. Many Indian laws continue to exist with high British flavour and the Indian government has not found the need to overhaul them, except for a few changes here and there. Just sample this.
The Indian government is happy with the Rules and regulations, framed by the Britishers way back in 1855, on telecommunications. Major provisions of the Indian Telegraph Act, 1855 still continue to govern the nation though India had progressed from manual telephone exchanges to hitech cellular and satellite-based communication technology. Of course, there have been amendments now and then, but the British flavour still continues. Many States still follow the old Indian Police Act, 1861. As many as 80 laws have become obsolete and need to be either amended or scrapped.
"Then there is the Indian Penal Code which was first made in 1860. It makes adultery a crime. Strangely enough, it stipulates that only the man, who has sex with a married woman, is to be imprisoned. The Indian Contract Act was made in 1872 and the Official Secrets Act was promulgated in 1923. The Regulations that governs the banking Industry date back to 1949," says Bojja Tarakam, an expert in Constitutional matters, emphasising the need to upgrade and Indianise the existing laws.
Section 128B of IPC, which deals with conspiracy against State is also highly misused. The British introduced it in India as people were against its regime.
Unfortunately, the law is now applied to all and sundry, while it needs to be amended or expunged in a democratic nation like India.
The British government made Coroners Act for areas under its influence - Madras and Calcutta. Indians from areas other than the jurisdiction of Madras and Calcutta high courts are not governed by the Coroners Act. And now, 130 years after the Act was first promulgated, Indian government still thinks of extending it to the whole of the country. The Act enables Indians dying in mysterious circumstances in a foreign country or within the country to expect a fair probe under the supervision of an independent public figure of repute.
He further says, "Britishers prepared CrPC and IPC to their advantage. For the first time after the British left the country we made major amendments to laws in 1973. Since then we have slowed down the process, making small amendments now and then. There should be a complete overhaul of the laws."
Supporting Tarakam, senior criminal lawyer AK Basha feels "the Indian laws in their present form are not self-assertive". India should do away with the archaic laws and fine-tune its legislation on present day realities like gay relationship, suicide, live-ins and terrorism.
The best solution, according to former Advocate-General S Ramachandra Rao, is to make fresh changes in Indian Constitution. "Constitution needed to be changed with regard to civil and criminal laws and legislation dealing with law and order. The Centre should have proper laws for control over States in matters of powers to borrow loans from international agencies."
He also wants the civil and criminal procedure codes too to be amended. "Though law and order is a state subject the Centre should take over the moral responsibility. Powers to make laws should be Constitutionally controlled. Income Tax and company laws should be severely revised, besides making an effective law to deal with the problem of terrorism," emphasises Ramachandra Rao.
When it comes to legislation governing marriage and divorce, there are several ambiguities. "There has been, and remains, tremendous diversity of laws relating to registration of marriages. The present state of the law on the subject is indeed complicated and confusing," says Law Commission of India Chairman Dr Justice AR Lakshmanan.
The Law Commission of India has taken an initiative on reforming the present laws including the one on suicide. Justice Lakshmanan in one of his reports to the Union Law Ministry recommended steps for repeal of the "anachronistic law" governing suicide (Section 309, IPC), which would "relieve the distressed of his suffering". The Law Commission noted that only a handful of countries in the world, like Pakistan, Bangladesh, Malaysia, Singapore and India have persisted with this "undesirable law".
Legal experts strongly advocate that a comprehensive uniform code to govern CrPC and IPC is the need of the hour. After the British left, the Indian government for the first time made major changes to these laws in 1973. After that there have been minor amendments from time to time. From British rule to 1973 and since 1973 there have been several changes in society and the laws need to be changed in tune with the changed circumstances. they argue. Moreover, the definition and nature of "offence" has also changed of late. Offences other than those listed in the book are committed now.
CV Mohan Reddy, advocate-general, Andhra Pradesh, says the Criminal Procedure Code should undergo several amendments and changes to expedite trials, the burden of proof should be shifted on the accused (now police). In foreign countries the burden of proof lies on the accused.
"A comprehensive law is needed to deal with terror activities. The present laws are sufficient to deal with the situation. But even though we need a comprehensive law nation-wide to make our fight against terrorism effective. Incorporate laws making changes in arrests/detention and police custody for a longer period".
He also wants statements recorded by higher rank officials to be treated as evidence against the accused. The confessional statement, in the present laws, of the accused recorded by police or investigation officer cannot be admissible in a court of law. "Similarly in procedural aspects too, there need to be amendment to make it easier for the investigation officer to book culprits without compromising on the principals of natural justice."
C Padmanabha Reddy, eminent criminal lawyer, is however of the view that there is no need for changes or amendments to the Indian Penal code. There's sufficient protection in the law for the citizens. The CrPC and IPC have been amended from time to time. There's lack of conviction and commitment on the part of implementing agencies. This is leading to problems in implementation. But this does not mean that the laws are not strong enough to punish the guilty.
Senior tax specialist Challa Kodanda Ram also endorses the views of Mr Padmanabha Reddy. He says the Indian laws are pucca and law-makers have taken enough safeguards to include sufficient care and provisions while making the Acts. In a democratic country like India the present laws are enough to govern the citizens and protect their interests.
But the implementation agencies and those framing rules based on Acts are leaving several loopholes and lacunae. These shortcomings in rules should be plugged. The implementing agencies should do their task well.
"Unfortunately officials do not show much interest in laws that are of public value and importance, as much they show while framing laws and rules that pertain to their salaries and perks," he says.
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Marriage & Divorce
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Present Indian laws link civil marriages with the applicable law of
succession. This has been greatly inhibiting or discouraging certain
communities from opting for a civil marriage under the Special Marriage Act,
1954. They fear that it would deprive them/ of their laws of succession.
The Births, Deaths and Marriages Registration Act, enacted way back in
1886, remains in force till this day. Though a new Registration of Births and
Deaths Act was passed in 1969, it has no provision relating to registration of
marriages.
The Law Commission has suggested certain amendments in both the Special
Marriage Act, 1954 and the Foreign Marriage Act, 1969 so that their
provisions become uniformly available to a larger number of marriages of all
Indian communities. "If accepted and implemented, the recommendations
will go a long way in popularising civil marriages," feels legal expert M
Madhurima.
Numerous marriages take place in India which are outside the ambit of
various personal laws but cannot be governed by the Special Marriage Act
either for the reason of not having been formally solemnised or registered
under it. "The question which law would then apply to such marriages
remains unresolved. Both the Special Marriage Act 1954 and the Foreign
Marriage Act 1969 are meant equally for all Indian communities. Yet they
contain some provisions which greatly inhibit members of certain
communities to avail of their provisions."
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Live-Ins
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Legal experts are in uniformity over the need for legislation on live-in
relationship, since it has now become a reality and turning increasingly
popular in metropolitan and major cities in India.
"Indian society has been tolerating the live-in concept since ages. There's
nothing wrong if it is legalised. If a man and a woman live together like
husband and wife, why should there be any objection? We have almost
legalised prostitution. Licences are given in red-light areas. State is
encouraging flesh trade. When two souls live together with love and
affection, it's better that it should be legalised," says Madhurima.
The Maharashtra government has already announced that it would change
laws to give a new definition to the term "wife". In the absence of a national
legislation, Indian women, who are in non-martial relationships, cannot seek
alimony, a share of property or child maintenance, in case the couple decides
to separate.
"You need a law that protects children and entitles these women to a share in
property. Such legislation will help recognise the autonomous rights of
women," observes Ranjana Kumari, director of the Centre for Social
Research.
Justice Malinath Committee to the Law Commission of India in 2003
recommended that women in live-in relationships should have the "legal
rights of a wife". Earlier this year, Supreme court declared that children born
out of such a relationship should no longer be called illegitimate.
Besides, the National Commission for Women in June sought a change in the
definition of 'wife' as described in Section 125 of the Criminal Procedure
Code, which deals with maintenance. The NCW recommended that women in
live-in relationships should be entitled to maintenance if the man deserts her.
The Centre is planning amendment to the legislation on domestic violence
against women in relationships to recognise live-in relationships as equal to
marriage. The government wants to define violence against women in such a
way that it makes no distinction between a woman, who is married, and a
woman in a live-in relationship.
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The Concept of Property
============
To begin with the government should relook at the concept of property.
"Property does not belong to an individual. It should belong to the State.
Property has nothing to do with religion. Endowments/Wakfs property
should not be divided. The income from such properties should be utilised
for the welfare of people, particularly for education and health. There should
be a uniform law as far as inheritance is concerned," argues Tarakam.
Most of inheritance laws in India do not have any reserved portion, i.e. the
entire property may be subject to testamentary succession or intestate
succession if there is no will.
Family laws and laws of inheritance in India are more men-oriented, with
more liberty for men than women. The laws have more scope for men to play
and tinker around.
Strangely enough, a registered title deed, however, is not always the
conclusive proof of ownership of property in India, nor is the land
registration record.
Supreme Court has recommended the Centre to change the "archaic law",
which accords legal rights to an illegal occupier of land if its real owner fails
to take legal action to retrieve the property within a stipulated time.
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Tenancy Law
=============
In Indian laws there's no protection of tenants. The laws protect only the
landlord. Though oral tenancy is prevalent in India, it is not legalised.
Experts feel that the concept of registration must be introduced and made
compulsory to ensure that the rights of both the tenant and the landlord are
protected. None of them should have an edge in law. Both should get equal
rights.
In Andhra Pradesh, the State government is planning to repeal the Andhra
Pradesh Builders (Lease, Rent and Eviction) Control Act 1960, to protect the
interests of tenants. Once the new law comes into effect, the rent controller
has the authority to fix a "fair rent" for buildings. It also restricts summary
eviction of tenants. Prior approval of authorities concerned has to be obtained
in case the landlord wants to evict the tenant.
If the building owner fails to repair the property, the tenant can approach
authorities, who will in turn undertake repairs to the structure. The expenses
thus incurred will be recovered from the owner through deduction in rent.
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Gay Laws
===========
Does India need laws on gays and lesbians. The Indian government says a
firm "no". Human rights and civil liberties activists, however, do not want to
agree with the government's arguments.
Section 377 of Indian Penal Code makes unnatural sex (gay, lesbian and
animal) an offence. The previous NDA government has proposed amendment
but it had not tabled it in Parliament. The Delhi High Court is presently
hearing a public interest litigation in this regard. The UPA government is
opposed to any amendments to Section 377.
Endorsing the stand of the Central government, Additional Solicitor-General
PP Malhotra says homosexuality is a disease and "it is root cause of spread of
HIV". Quoting several examples and study reports, he says "from the health
point of view, the government does not want to repeal the Section".
Senior advocate M Madhurima argues that Indian society has given sanction
for live-in relationship. "There's no sanction for gay relationship. It's a
western culture and it need not be implemented in a traditional country like
India," she says.
But those in favour of MSM activity point out that it has been in existence for
long. Even temple sculptures and Indian epics talk about MSM activity,
though it was not recognised or openly discussed.
"The incidence of HIV cases is growing among homosexuals. Unless we
recognise the rights of MSM, the problem will only aggravate. The Section
377 was introduced by the British regime. In those days homosex was
thought to be a disease. Now it is recognised as a biological preference," says
N Arun Choudhary, chairman, Darpan, which is championing the cause of
human rights.
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Educational Laws
===========
Educational laws in the country require immediate attention, says senior
educational lawyer MV Raja Ram. "The present laws are not meeting the
present and future requirements of students. They have made imparting
education a commercial activity of sorts. Laws should be made to put all
restriction on the managements and educational institutions to reduce anxiety
in students. This will make for a better development of the State and the
country," he feels.
The education system should be modernised with strong enactment to remove
stress from students. In Section 3 of the UGC Act there's a provision for
deemed universities. It gives a scope for business for deemed universities.
There's no check on conduct of examinations and issue of certificates by
deemed universities. The UGC notifies courses which are to be taught in the
country but deemed universities offer their own curriculum. Students suffer
as the there UGC does not recognises such courses.
Moreover, there's no effective law that effectively governs deemed
universities and puts checks on the autonomy of managements of private
institutions.
"Fee hike should be based on the proportionate increase in the income of
people. It should not benefit the managements. A proper Act should be made
on fee structure. Stress is leading to suicides. Education should be de-
stressed," Raja Ram suggests.
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