meghna – Page 5 – Legal Drift

Wife Swapping : A Blow to Indian Marriages – An Overview on Adultery as Crime

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Sunita was married to Anant Sharma for ten years. She had two children from the blissful relationship. One day she discovered that her husband was involved with his colleague Sameera, who was fully aware of his marriage. Unfortunately the court can prosecute neither Anant nor Sameera for adultery according to the Indian Penal Code.

Section 497 of Indian Penal Code declares adultery as a crime. However to constitute the offence a man should have consensual intercourse with a married woman. Sexual intercourse which is a must take place, is often established by circumstantial evidences. Under the Section 497, only a man can be prosecuted and woman cannot be termed as a abettor. The entire burden of crime rests on the man alone, for seducing the woman and interfering in her marital life.

It is necessary that the woman should be married and sexual intercourse between a widow, prostitute or unmarried woman and a married man would not attract any punishment under the present section.

The consent of the husband is taken as a defence in the cases of adultery. If a husband consents or does nothing to oppose the adulterous behaviour of his wife. The same. Wife’s lover cannot be charged of adultery. If the argument of volenti non fit injuria (what is voluntary cannot injure) is taken as a defence in such cases, then wife swapping cannot be deemed as a crime in the country. In wife swapping couples exchange their spouses for sexual intercourse. In cities like Bangalore, Delhi, Jaipur, Mumbai, Chennai, Chandigarh etc practice of wife swapping is gaining momentum.

Even Though the Section clearly states that the sexual intercourse must be consented and must not amount to rape (Section 365). The consent of woman and not that of husband is important. If the husband consents but the wife does not the accused would be prosecuted for rape under the section 375 of IPC.

The provision treats women as chattels and property of their husbands. Where on one hand it recognizes that woman can transgress their marital boundaries on the other hand it imposes no punishment on their husbands for the same acts. If a man has extra-marital affairs with a unmarried woman, widow or prostitute, the wife has no recourse against her husband or the other woman. Only the husband has the right to charge his partner for adultery, no such right is granted to wife.

In Yusuf Abdul Aziz vs State, Constitutional validity of the provision was challenged but the Supreme Court held otherwise. The Supreme Court observed that woman was a victim and not the seducer in the crime. It further stated that the law allows the spouses to make up and gives them an opportunity to save their marriage.

Social deterrence is required to control offences such as adultery. Adultery is not only a crime against ones partner but its also effects the society at large. It shatters the beliefs and trust of one’s children, relatives and other acquaintances. It is a crime which can never be controlled solely by law. This deviant behaviour of adultery can be avoided by building better understanding between spouses. Morality and mutual trust comes from within and no external agency can impose it entirely. I believe that the victims must still be given some legal recourse in such cases. It would definitely deter such offences to some extend. The punishment (5 years) prescribed must be scaled down but provision of compensation to the victims must be added. The male spouses must maintain their wives in the same manner as before the institution of proceedings.

The law must impose uniform punishments on both the partners of crime. The irrational classification between man and woman, in limiting the class of offenders to men it violates Articles 14, 15 & 21 of the constitution. The same punishment must be imposed on married men and their accomplice. Since wife swapping is becoming a prevalent practice these days, both the legislature and the courts must define “consent of the husband” more vividly. If the law is amended and adultery by both husbands and wives is punished then the word “consent or connivance” must be abrogated. It should be done because sometimes the wives due to numerous reasons are unable to oppose the deviant behaviour of their husbands. In these circumstances the husband must not be granted the defence of “volenti non fit injuria”.

Legal Mirror Politics Social Issues

Another Flawed Law – Communal Violence Bill 2009: Harms the Victims, Protects the Perpetrators

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After the mass opposition by all spectrums of society over the Communal Violence Bill 2005, UPA government has re-introduced the bill with 59 amendments. Unfortunately it hardly makes any structural changes. It has been highly criticized on certain grounds. The bill treats communal violence as a law and order problem but fails to recognise its threat to the socio-economic basis of the society.

The definition of communal violence given under the bill is not comprehensive and includes any scheduled offence under Section 19. Instead of the word communal, ‘sectarian’ must be employed. The ‘Schedule’ only list outs a number of IPC Sections and few Sections of other Acts. The schedule is erroneous in its very nature. The Sections 6(3) and 8(2) of the Explosives Act, 1884 listed in the schedule do not exist at present. Section 6 of the Places of Worship (Special Provision) Act, 1991 and Section 7 of the Religious Institutions (Prevention of Misuse) Act, 1988 does not define any offence. They only prescribe punishments for contravening the provisions of Section 3(2) and Sections 3 to 6(3) of their respective Acts.

Although the punishment for offences related to communal violence has been enhanced, offences are restricted to penal statutes only. It doesn’t include provisions related to sexual violence, social and economic boycott, segregation, discrimination and communal writing in textbooks. Moreover the fines enumerated in most of these acts are considerably low and even twice the amount may not serve the purpose. It must define these offences and punishments vividly.

Under the bill, the State can declare certain areas as communally disturbed areas. However Section 55 empowers the Central Government to give directions to the States to take immediate measures to curb communal violence. If such directions are not followed the Central Government may declare any area within the State as a ‘communally disturbed area’ by a notification. It may also deploy Armed forces on a request from State Government. But the bill is quiet on what would be done if the State Government does not request the Central Government to deploy the Armed forces or opposes such deployment in the State. No immediate relief is provided in these situations. There would be considerable lapse of time in the issuing of directions by the Central Government to the State which would affect damage control adversely.

Review committees and Special Investigation teams may be constituted by the states. The State governments have wide discretionary powers in these matters. The accountability of such committees has also not been laid down. It does contain provisions related to witness protection by providing punishment for threatening a witness and by concealing their identity.

The bill also states that Women police officers must be provided by state to record any information relating to the commission of a scheduled offence committed against women or children. However it is silent on sexual offences which form a major portion of communal offences. It also contains no provisions related to compulsory inclusion of at least two women members in the state, national and district council.

The Special courts may be established or abolished by the states in any communally disturbed area. The states have wide jurisdiction in this regard. It may prove detrimental to national interest as happened in Gujarat riots and Bhagalpur Case. To avoid such situations these courts must be monitored by National Human Rights Commission (NHRC). Their decision must be time bound and the public prosecutor to be appointed must not belong to the state in which communal violence has taken place.

It does provide compensation to the victims on basis of the nature of the offence, the motive, the economic status of the offender and the claimant but there is no uniform scale of compensation for death, injury, rape and destruction of individual and religious properties during communal riots. The state holds no responsibility or liability in cases of destruction of religious properties. There is no provision granting ex-gratia payments to the victims. The right of reparation must be clearly stated and must not be left on the discretion of state governments. Information must be provided at every stage of proceedings. Right to legal representation of their choice, counselling, rehabilitation etc must be included.

The District Magistrate and competent authority may take preventive measures. They can order to deposit, search, detain and seize of arms & ammunition in communally disturbed areas. They may even prohibit certain acts or even control the conduct of persons in such areas. Punishments may be imposed for loitering near prohibited areas. A person may also be punished for being in possession of arms without license, assisting offenders, giving financial aid for the commission of certain offence or even for threatening witnesses. Even public servants can be punished if they act in a mala fide manner. But the political leaders, administration and police officials neither have any mandatory nor are they accountable for their reckless actions.

The Public Officials must be debarred from their jobs if the offence is proved. If the Special Court observes that the D.M. and S.P. could have prevented such situation by taking an advance action, they should be held responsible. If media is found irresponsible or misreporting a fine must be imposed on the news agency. Public recognition must be given to people who help in the relief measures. The law must protect and not harm the interests of the public.

Social Issues

The Sadhu (Saint) who robbed me while I was Praying !!

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Babri Mazad and Gujarat riots are not the only incidents which establish a nexus between crime and religion.

Have you ever imagined that the Sadhu or saint you always looked up to, might being a criminal? Probably not ! but you are wrong on this, many of our religious protagonists have been caught by law for committing heinous crimes like rapes, child slaughter, murders and frauds. In November 2009 two sadhus Ramcharan Rathod and Balram Patel were arrested in Junagarh for kidnapping fourteen year old boy.

Recently police exposed a multimillion pound prostitution racket in south Delhi. The police suspects a Hindu Swami (Shiv Myra Dwivedi) used his temple to provide as many as 200 prostitutes. The prostitutes also included air hostesses and students. They solicited for clients in five star hotels. He claimed to have more than 100,000 followers including leading politicians. He was arrested by undercover officers. It is suspected that the accused had connections in other states like Uttar Pradesh Charges of MCOCA are levied against him i.e. he will be prosecuted for organised crime of prostitution.

In September 2009, the police had arrested a sadhu in Alandi (near Pune). He owned an ashram in which children come from different parts of Maharashtra to learn music and other skills. The ashram had residential facilities and at the time of his arrest 20 students were enrolled in the same. The police said “He used to lure them to his room in the ashram on the pretext of massaging his arms and legs and then performed unnatural sexual acts with them. The incident came into light when a thirteen year old boy told about the incidents to his parents.” Subsequently five more boys turned up with the same grievances. The Sadhu was charged under Section 377(unnatural offences) and Section 506(criminal intimidation) of the Indian Penal Code.

Sadhu Santosh Madhavan was jailed in Kerela for 16 years for raping and illegally confining two young girls from an orphanage that he ran. Police had also found pornographic material and drugs in his ashram.

Spiritual Guru Asaram Bapu and two of his disciples were charged with attempt to murder. Raju Chandak, the victim suffered three bullet injuries. He had alleged that mysterious deaths of two boys – Dipesh Weghela and Abhishek Waghela who were studying in a residential school which was in the premises of Asaram’s ashram was due to the activities performed in the ashram. It was contended by media that black magic acts were performed in the ashram. These are not the only illegal activities carried out in the premises of the ashram. The police has charged him under sections of the Indian Penal Code (IPC) and Arms Act.

These are not the only cases of fraud, abduction, murders, rapes that have been associated with these god men. The strength of these protagonists lies in the support given by their followers. The people religiously and blindly follow their idols. They believe that the charges are conspired against their spiritual leaders. They not only enjoy the support of the public but also get favours from the political parties. Most of these criminals have close nexus with politicians, elites and senior officials. Thus police operations are hindered at every possible stage by the authorities. They also enjoy the privilege of being extremely rich. With the passage of time they succeed in draining the wealth of their followers. Mostly their abstinence is accompanied by luxuries. They have huge mansions, numerous servants, luxury cars and unlimited money. They often use these things to bribe the system.

It is true that all saints are not monsters, but what about those who are? They not only play with the values of people but they also manipulate their subjects. They use their oratory skills to deceive public at large. The media and police have time and again exposed such cases but the public is still venerable. In spite of various awareness programmes people blindly follow their gurus. This has often increased the crime. At times when a Sadhu is caught the people hinder the working of police through their violent protests.

I’m attaching an Article published in the Hindu along with mail. It exposes some of the magic tricks employed by Sadhu’s to deceive people.

http://www.thehindu.com/2003/07/27/stories/2003072703250500.htm

Social Issues

Eve teasing, Gambling, Robbery and Drugs – Have they replaced the actual colors of Holi Festival?

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Holi is not only the festival of colors and joy but also that of crime. On the occasion of Holi, crimes like eve-teasing, sexual harassment, robbery, gambling and consumption of drugs have grown tremendously in recent times.

The public places like railway stations, parks, gardens etc are often guarded by disguised police officials. Females are often harassed by males on this auspicious occasion. Eve teasing has become a common feature of the festival. Perpetrators usually take the advantage of being concealed by colors. Most of the victims do not realize that they are being harassed.

A report demonstrates that eve-teasing incidents have increased near schools and other educational institutions during Holi. Usually it’s not the students but some unwanted elements that enter these campuses. Police has time and again taken steps to prevent these incidents by only allowing people who possess identity cards of these institutions.

Robbery has become another characteristic feature of the festival. The robbers target drugged individuals, open houses and passengers. This year the Bihar police has enhanced the security of some trains like Jansadharan Express, Sampoorna Kranti Express, Bihar Sampark Kranti, Vikramsheela and Magadh Express. The modus operandi of such criminals is extremely simple. They first drug their victims and then take away their valuables. The passengers are not left with any remedy because till they find out, it is usually too late. Moreover they are strangers to the administration of the place as well. Most of the times they lodge a complaint in railways with very little or no hope at all.

The other infamous incidents related to Holi are that of balloon throwing. People target individuals from moving trains with color filled water balloons. The same can have very dangerous consequences. It may lead to partial or complete blindness if hit in the eye. In cities like Mumbai which is a hub of local trains such unfortunate incidents take place on a wide scale. The Mumbai Railway Police has ensured that sensitive areas like Malad, Goregaon, Jogeshwari, Khar Road, Matuga, Grant Road on WR line, Byculla, Kurla, Ghatkopar Sion, Bhadup, Chembur Wadala, Govandi and Mankhurd would be guarded by 31 teams of police officers this year. It is not only the railway passengers who face the issue of water balloons. They are also thrown children at unknown people from distance. Parents should discourage such practices. The children should be explained its harmful impact both by parents and at schools. They must be warned that this may lead them to end up in juvenile homes for some time. Apart from this some people also throw mud and cow dung at people.

Gambling and playing cards is now being associated with Holi. People after consuming liquor play ‘teen paati’ or flash and try to make some money out of it. Playing pot is another activity in which people indulge into. Gambling is done on both small and high scale. Not only villages and small towns but also in big cities gambling takes place.

Consumption of liquor and drugs is a widely practised on this occasion. In spite of some governments banning sale of liquor on this day, people manage to arrange alcohol and drugs. Bhang is consumed by people in the name of Prasad. Even though consuming bhang is illegal, it is sold openly by shops on the festival. Some people claim that Bhang is the official drink of Holi. It is mixed with vadas, thandai and pakoras almost everywhere in northern India.

Drinking is not itself a crime but it can lead to many crimes. One of the major reasons of date rapes is intoxication. Females are unknowingly administered drugs by their counter-parts. They are then subjected to rapes. The female is unable to protest due to the effects of intoxication. Drunk driving although punishable by law is witnessed on occasions of Diwali, New Year and Holi. People drive unconsciously and not only put their lives in danger but also risk the lives of the others. Traffic Police does its best to control such acts but it may not be able to guard every street and lane.

It is not the Police which have to perform all the duties related to security on the festivals. The citizens also share some responsibility and accountability. Drinking and gambling is permissible but it should be controlled. One should not drive after drinking; your celebration might turn into a funeral for somebody else. Women must be careful while playing holi, they might be harassed or eve teased. Females must not go out alone on this day. One should not consume drugs or alcohol when offered by strangers, they might be robbers. Students and College administration must restrict the entry of strangers on this day. Shops selling water balloons must be heavily penalised. Acts like mud, egg and cow dung throwing must be discouraged by public. One should be a part of celebration and not that of crime. Enjoy the festival with some dignity and grace.

Health Legal Mirror Social Issues

Is It Crime to Be Gay in a Country which Proclaims to be the Governor of All Human Rights

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The recent judgment of Naz Foundation v. Government of NCT and Ors had created havoc all over the nation. The Delhi High Court stated that “Section 377 of the Indian Penal Code is unconstitutional as it criminalises consensual sexual acts of adults in private, violative of Articles 19, 21, 14 and 15 of the Constitution. The provisions of Section 377 I.P.C will continue to govern non-consensual penile, non-vaginal sex and penile non-vaginal sex involving minors.” The ruling was prospective in nature and was not binding on cases already decided. The court further clarified that the term ‘adults’ would constitute persons above 18 years of age. However this decision is binding only in the territory of Delhi and has persuasive value elsewhere. Therefore a proper legislation is required in this regard.

Section 377 is based on the Judo-Christian principles of morality. The British believed that such acts were unnatural and unproductive. They were against the order of the nature and against the will of the god. Homosexuality was not an alien concept to the country. There have been evidences of the same in the Rig-Veda, Manusmriti, Tantric rituals and Kama Sutra. For past 150 years Angaar (which is a small village in Gujarat), marriages between two males take place on the auspicious occasion of Holi.

Different religions have different perspective in this regard. Most of the religions condemn homosexuality on grounds of procreation. But procreation should not be a basis of discrimination as infertility exists in heterosexual couples also. Buddhism does not lay more stress on procreation as such. The Buddhist literature is silent on Homosexuality but it is presumed that the lay monks are allowed to practice homosexuality. Traditionally in Christianity homosexuality was condemned on basis of being unnatural. But now a days many Christians believe that it is akin to other unnatural acts like alcoholism. In Hinduism ancient texts like Manusmriti and Bhagwat Gita condemn such acts. In Islam it is considered sinful and publishable.

Countries like U.K., USA (some states like Georgia, Texas etc), Canada, Australia, Fiji and Nepal have decriminalized homosexuality and have recognized the Right to Privacy argument. Countries like Afghanistan, Iran, Mauritania, Pakistan, Saudi Arabia, Sudan and Yemen prescribe death penalty for the homosexual conduct. In nations like Cambodia, China, The Philippines, Thailand, Vietnam and Hong Kong there is no criminal prohibition on Homosexuality.

Section 377 penalizes private non-commercial sex between two consenting adults of the same sex in the same manner as it penalizes bestiality, forced sodomy and paedophiles. The conduct in this provision relates to man with man, man with woman, and man with animal. The present law is often misused police officials. In Jayalakshmi v. The State of Tamil Nadu, a eunuch had committed suicide due to the harassment and torture at the hands of the police officers. He was continuously subjected to forced anal and oral sex. Similar incidents happened in Bangaluru where a transsexual was raped by a group of hooligans. The section interferes in the private life of individuals. Medical evidence has proven that Homosexuality is not a disease and cannot be treated. It is not by choice but by birth. Morality and public opinion cannot be the basis of any law. The rights of the transgenders, transsexuals and homosexuals need to be protected. They have as much right to choose their sexual partners as the heterosexuals. Consensual Sodomy between adults must not be subject to any punishment. Even A.I.D.S can be prevented if sexual deviance is checked.

Due the pressure from the society most of the homosexuals are forced to live the lives of heterosexuals. This affects the lives of both the homosexual and his heterosexual partners. In Moina Khosla vs Amardeep Singh Khosla A decree of nullity of marriage is granted to the wife under section12(1)(a) of the Hindu Marriage Act as the husband was a homosexual who could not consummate the marriage in spite of the repeated efforts of the wife. The present law has also proved a hindrance in the path of social workers. When a group of A.I.D.S activists went to the Tihar jail to distribute condoms amongst the prisoners, they were not allowed to do so (as it was contrary to Section 377). The punishment prescribed under Section 377 for consensual sodomy is ten years or life imprisonment. It is more than the minimum punishment stated for rape i.e. seven years.

A new legislation is required. Even if section 377 is not struck down completely, it must be definitely amended. Section 377 is the only Section in I.P.C. which deals with Child Assault. There must be separate and specific laws for paedophiles and zoophiles in the country. If people are not made aware of the new law then the same would be manipulated easily. Most of our population lives in rural areas and thus implementation of the same must be done effectively and efficiently. It is contended that a proviso (exception) may be added to Section 377 stating that “a non-commercial homosexual act in private provided that the parties consent thereto and have attained the age of eighteen years would not be prosecuted under the act.”

Legal Mirror Travel World

An Insight on Travel Laws in India – Do They Really Exist?

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Mumbai Recovers Following Terror Attacks

India is a land of culture, diversity and tradition. Athithi Devo Bhava which means “guest is god” has been one of the ideologies of the nation. But unfortunately some people have brought disgrace to the country on the world forum. There are dozens of cases in which foreigners are harassed, raped, deceived and abused.

The government and the administration always tries to suppress the news related to ill treatment of foreigners. It is done in order to save the country from insult and global pressure. But all efforts have turned out to be futile. The perpetrators usually think that they are free to harass foreigners on following grounds a) they are alien to the country b) they are unaware of any laws c) no one recognizes them c) they carry foreign currency d) their liberal attitude.

I would like to further elaborate on the last point. It is true that the lifestyle of the west is quite different from ours but it doesn’t mean that anyone has a license to harass their ladies. People who see vulgarity and nudity would not even spare a woman in sari.

Shantaram Naik, (a congress M.P. from Goa) while commenting on alleged rape of 25-year-old Russian woman in Goa said “Rape is a heinous crime but an alleged rape of a lady who moves with strangers for days together even beyond the middle of the night is to be treated on different footings.” The statement is absolutely absurd and disgusting which holds no water.

The law definitely protects the tourists but here I would like to focus on the preventive steps that can be taken by them to avoid such harassment.

1. Try to contact a Authorized Travel Operator who would ensure your bookings at safe places.

2. Do not roam around on streets late at night.

3. Try to avoid staying at deserted guest houses or hotels.

4. Don’t go for a very cheap hotel. It may not turn out to be a safe place.

5. Try not to expose bare bodies as it might attract unnecessary attention.

6. Always take a prepaid taxi or auto.

7. If you decide to lodge a complaint inform your embassy about it as well.

The Indian Government must also take vital steps to prevent such harassment and molestation. The only law in the country which remotely concerns molestation is Section 354 of Indian Penal Code under which if a person outrages the modesty of a woman he is punished. It is very difficult for the courts to construe what amounts to modesty of a woman. Therefore most of the times the offender is acquitted in such cases. The offender can be charged for rape under Section 375.

The government must definitely come up with the legislation to criminalize molestation and sexual harassment. The tourists must be provided with a helpline number which they can call at times of emergency. Moreover the government must discourage tourist agencies which do not have government authorization. Citizens must also take active part in preserving the image of the country.

Please find a real life incident which happened with a lady from Norway in Jaisalmer, Rajasthan. This was received by one of my friend who himself is a tour operator. I just published it so that people can read and feel how the foreigners are ill-treated in our country. I would suggest all my readers to just go through it once..

“Dear Sir/ Madam

I’m writing to you because of an unpleasant incident I hope you can help me with. I was involved in an accident during a camel- safari in Jaisalmer, Rajhastan, this week.

I was supposed to take part in a 2 days- 1 night camel- trek into the desert, but shortly after the start of the camel ride the strapping holding my seat to the camel broke and the entire contents, including myself, fell off. The accident took place because the equipment (the saddle) clearly was not in a good condition, and therefor putting the rider at risk.

The seat slid off the camels back, with me falling the same way, hitting hard ground with my lower back first and then my head. It caused enormous pain, and I could not sit up. Thankfully we had a nurse with us on the trip, and she made sure nothing was broken. I insisted on returning back to town, as the pain was too much to handle for further riding. The camel drivers wanted me to continue, obviously trying to ignore the seriousness of the situation, but I refused to do so because I did not want to put myself in any danger of worsening the injury.

An hour later I was picked up by the company’s jeep so I could return home. Upon my return I was met by an ignorant staff of owners who tried to laugh away the whole episode by claiming that this happens all the time. (Like that would make the situation better?)

As is common in Jaisalmer, it is the different hotels who also run the camel- safaris. I was surprised with the amount of resistance and denial of responsibility I was met with. Not only did the owners refuse to apologize for the incident, they also said that an equipment failure was not their responsibility at all. At one point they tried to blame the camel drivers, but I think it’s important to underline that these people treated me nothing but well, and that the full responsibility belongs to the owners of the equipment.

I had a doctor visiting the same afternoon, who confirmed that I had a slight concussion and a heavily bruised lower spine. I was very lucky, but it scares me to think what could have happened if I wasn’t. It’s a 2 meter fall, and others might not be that lucky. This episode caused some further problems.. I had to stay in bed for 3 days, luckily not longer, but this also caused a total change in my travel plans. I contacted the management and claimed a refund of the organized camel trek, which seemed more than fair as I only took part of the trek for an hour, and on top of that caused me an injury. The management still refused that this was really their responsibility, and first only wanted to refund half of the amount. After a lot of back and forth we got the whole sum returned, but only by arguing that we also had paid a lot of money during our lengthened hotel stay in terms of food and payment for our room.

All the time I was treated with ignorance, either being told that “they had fallen of many times-take a pill and you’ll be better” obviously claiming that this is not serious. Or just refusing to say that they have any responsibility for the tours they arrange, and the safety of the people they bring on these tours. This is the thing that frightens me the most; that a whole town- where not one safari company is officially registered, everyone refuses to take any responsibility for what might happen to innocent tourist when they go into the dessert on their arranged tours.

During our stay in Jaisalmer we contacted the local tourism force, who barely spoke any english, and basically said there was nothing we could do. And we also went to the local police station who said that the desert was outside their jurisdiction, and therefore they could not help us. You feel very helpless as a tourist in a place where family bonds stand stronger than the official law, and no one is willing to help.

This was not the only problem though. When I fell of I also had a Digital SLR camera on my neck, with a value of £700. When I fell, this smashed in the ground with me and the lens was broken. I found out about this after my return to the hotel, and the first thing I did was to contact my travel insurance, explaining the situation. They said that this was the responsibility of the tour arranger, as it was broken while I was in their care, due to third part responsibility. When bringing this up with the management it caused more denials of responsibility, and they actually said something in the lines of; “get your money back from your travel insurance, and be happy, this is your fault, not ours.” I tried to make them understand that they had to contact the insurance company they had for their travel company, but it soon became clear that they only had an insurance on their hotel and not the safari tours. Thereby they kept denying any responsibility, as they otherwise had to pay for this themselves.

Now I find myself in a hopeless situation. It is personally very frustrating to be handled with such ignorance,but also a total denial of all responsibility is unacceptable. They didn’t seem to care at all, and would continue running the same way, meaning that other travelers might be put in unforeseen danger. The company pointed out countless times that they did not see the point in having a third part insurance, as, according to them, any incidence should be covered by the travelers own insurance. As this is not the case, I don’t have much choice than to cover the cost of my broken lens myself.

This has been a very unpleasant episode, and it has also taken a lot of energy in a situation where I didn’t have any. I’m writing this to you mostly because I hope I can help to prevent other travelers to end up in the same situation. But also because I wonder what one should do in such a case. When neither the police, local tourist force or the tour operator wants to cooperate, who do you turn to?

Who should cover the damage of goods when its a third parts responsibility? I would be grateful for a reply if you have any suggestions to how I should handle this. I found myself in a very helpless situation, any advice on how to act in such a case would be an enormous help.

PS. I know that this might not help me any further on, but please know that I more than anything wanted to inform you about this because I hope that an awareness of the irresponsible tour arrangements in Jaisalmer might result in a safer and more regulated industry for other travelers.”

Gosh… This certainly happened in India…

Legal Mirror Social Issues

Forceful Sex by relatives – Do we Have Laws in India to Protect the Victims?

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A few days back I read that a father had impregnated his 15 year old daughter. His wife was aware of his acts. But she couldn’t do anything to protect her daughter. She was continuously threatened by her husband. When questioned by the police she confessed that she said she supported him because she was financially incapable. She was convinced that this was the best way to protect her daughter’s future and family’s reputation. On knowing the truth the society could have abandoned the daughter and the family (which would have affected the future of her other children as well).

The sexual intercourse between close relatives is referred to as incest. Certain cultures and tribes support incest. In Andra Pradesh, Menarikam marriage takes place where maternal uncle is married to his niece or marriage between cross cousins take place. Marriage between cross cousins is also allowed in Muslims, Zoroastrians and Jews. But in most cases incest is not consensual. In India crime of incest is considered a taboo and is seldom discussed.

Unfortunately it is not the offender but the victim who suffers the wrath of the society in such matters. When a child is raped or abused by her/his father, brother, uncle or any other close relative, her/he is also forced to continue the relation. The abuser usually threatens the child and convinces him/her that silence is the only resort he/she is left with. The child is continuously harassed and sexually abused by the perpetrator. It affects the child mentally, physically and psychologically. The mental agony may result in deterioration of health or diet. It is difficult for these victims to trust others in future.

A study by Tata Institute of Social Sciences points out that one out of three girls and one out of 10 boys had been sexually abused as a child. Fifty per cent of child sexual abuse occurs at home. 15 per cent were used for masturbation mostly by male relatives when they were less than 10 years old. Seventy- five per cent of the abusers were adult family members.

In India we do not have any specific legislation regarding “incest” whereas in many developed countries like U.S.A, Britain and Germany incest is treated as offense. The present Indian Law is insufficient to prevent child abuse. We have no specific law on child abuse. The Indian Penal Code recognizes rape and sodomy as an offence but it doesn’t treat child abuse specifically. Anything less than rape comes under the ambit of “outraging the modesty of a woman”, which is vague and open to interpretation. Moreover Section 354 (outraging the modesty of a woman) is a bailable offence and in many cases the accused may abscond easily. It only relates to women and therefore males cannot be protected under this section.

Although Section 23 of the Juvenile Justice Act deals with assault the punishment prescribed in it is only 6 months. Again Section 5 of the Immoral Traffic Prevention Act, 1956 prescribes punishment for seven years for inducement of child into prostitution but it does not address child abuse. The abuse of boys is usually overlooked. Only Section 377 talks about unnatural acts under which offences like sodomy may be charged.

Sexual abuse by relatives must not be spared. In most cases the family supports both the victim and the offender. If the perpetrator is acquitted, then the victim may be again subjected to the same violence. Regular workshops must be organized at schools to educate the children of their rights. Counselling must be provided to the victims. We generally deny the presence of incest in our society. This encourages the offender to commit such crimes. He is often convinced that the societal pressure would never let his victim reveal the truth. The weakness and inability of the society to react has always resulted in more of such crimes. We definitely need stringent laws in this regard. But we also need the help of students, teachers, parents, neighbours, police, judiciary, lawyers etc for implementing them.

Social Issues Travel

Save Tiger Campaign Gains Momentum – Please Stop Killing Our National Animal !!

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Tiger skin, guns, stuffed tigers and photographs of tiger assassination were thought to be signs of bravery by the kings and British in past. But today’s commercial society is concentrating on the extraction of profit from the tiger trade.

One of the main ingredients of the traditional Chinese medicine is tiger bones. The export for this oriental medicine started in mid-1980. Moreover there is a significant demand of the tiger skins in the international market. Interestingly in India there is no domestic demand of tiger skins or bones.

The Wildlife Protection Society of India claims that the tribal are involved in the hunting of this cat. They are offered prices ranging from a dollar to fifteen depending upon the methods by them to kill the tiger. According to Wildlife Protection Society of India, 27 tigers were killed in 2007, 29 were killed in 2008 and 32 killed in 2009. From 2000-09 India has lost about 417 tigers due to poaching. The involvement of forest officers cannot be ruled out either. In 1993-94, 36 tiger skins and 667 kilos (1470 pounds) of tiger bones were seized in northern India probably they were to be exported to China.

Ingredients like parts of plants, the leaf, stem, flower, root, animals and minerals are integral parts of the traditional Chinese medicine. The Chinese demand for the use of parts of endangered animals like rhinoceros horns, seahorses and tiger bones and claws have escalated black marketing and poaching. In Asian cultures tiger is associated with potency. Thus there is huge demand for tiger penis and eyes which is presumed to cure virility. In October last year the tiger skin trade in China was exposed. The skins are used as luxury items for clothing and home decor. Officially buying and selling of body parts of animals is illegal in China. But in China the skin and other body parts of endangered animals are easily available.

Environmental Investigation Agency spokesperson Alasdair Cameron said that “We’re hoping to use the year of the tiger as a way to highlight the threats faced by the animal but traders in China are actually saying that next year is going to be great because people will want to get a piece of the tiger in the year of the tiger.” “There could actually be a spike in demand.”

Under the Wild Life (Protection) Act, 1972, a maximum sentence of three years imprisonment or a fine (up to Rs. 25,000) or both. The act specifies that killing endangered animals may result in an imprisonment of seven years. Animals like Black buck None can deny that there is a need for strict implementation of anti-poaching laws. The ministry is now planning to amend the present Act. It has decided to involve local people (forest residents) to assist in the protection of wildlife.

The cooperation of Bhils has already proved instrumental in saving the Black Bucks. The ministry is also relocating families residing in the core areas of tiger reserves. It would be done with their prior consent. They would be duly compensated for the same. The Environment and Forest Ministry of India along with the Supreme Court have released the CAMPA fund that will aid in the regeneration, conservation and preservation of the forests. The establishment of a Green Tribunal is also on cards. It would work as a special environment court in which cases related to environment and forests would be tried. Increasing forest area by afforestation is also a part of the proposal. A tri-partite Memorandum of Agreement(MoU) between the Ministry of Environment and Forests, Tiger Reserve Management and State governments may be signed. It would definitely ensure effective tiger conservation.

Tiger is our national animal. We take pride in associating ourselves with it. But the present statistics reveal that we will soon lose the big cat. Probably then animals like donkey, rat, cats or dogs would be chosen to represent India. It is a disgrace us that we are unable to protect our national pride. I agree that the masses are unaware of the happenings in forest but they can certainly pressurize government to take some action. The amendment would surely help in preservation of the wildlife. But its implementation would surely be a concern.

We require an efficient vigilant authority which would monitor the effective functioning of the forest agencies. Let’s do every little thing to save our national animal. I seriously don’t want rat to represent the country just because it can produce up to 29,000 or more a year. Let’s make tiger the survivor and not a souvenir to the nation.

Politics Social Issues World

Taliban Leader Captured !!

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Suspect In Attempted Airplane Terror Bombing Arraigned In Detroit

Taliban: This originally means students; has become a synonym of terror. The Shariat law prevails in the reign of the Taliban. They forbid pork, wine, music, lobster, cameras, pool tables, masks, chess, nail polish and many other things. Taliban laws were not only draconian and inhuman in nature but were found sometimes contrasting to Shariat. They encouraged the production of opium (for export reasons) but opposed the production and consumption of hasheesh or alcohol.

It is alleged that Pakistan was one of the major sponsor of Taliban. It had not only provided arms and finance to the same but had also provide them military equipment, recruiting assistance, training and tactical advice. However Pakistan had always denied such relations. Recently United States had threatened Pakistan that its financial aid would be ceased if it continued supporting Taliban.

Today Mullah Abdul Ghani Baradar, the group’s No. 2 leader behind Afghan Taliban founder Mullah Mohammad Omar, who is a close associate of Osama bin Laden, was captured in Karachi. His arrest is certainly the great victory for the Americans. The tussle between U.S.A and Taliban had gained momentum after the 9/11 attacks. Although the mastermind behind the attacks Osama Bin Laden was never caught, the United States had declared a war against terror. It is believed that his arrest would cease the Taliban operations for some time. America is grateful for the support of Pakistani intelligence agency but still believes that the same could be arrested much earlier. They believe that Pakistan had given covert support to Taliban Leaders in past. The U.S. warning and the situation faced in Swat valley are probably the reasons for I.S.I support to America. Taliban has denied the news by saying it’s a rumour spread by “foreigners”. Even if the same is true, the position is still unclear under which law would be Baradar tried. Whether he would be tried under the law of Pakistan or United States? In past Taliban leaders have been tried under the U.S. law probably the same would be done in this case too.

While it is proclaimed that Baradar confession may lead to arrest of other Taliban leaders. It is also true that his capture would not damage Taliban’s working. He was a member of Taliban Shura. He performed mainly political work. This would definitely affect the organization on psychological level but would not affect it in totality. Obaidullah Akhund, a leader of same stature was also caught in 2007 with the help of Pakistani agencies. The other reason which supports the argument is that in Afghanistan if a leader dies or is captured it is a setback to the whole tribe. Baradar belonged to Popalzai Durrani tribe (which was against Taliban).

Taliban has been a growing force which is becoming powerful day by day. They have their allies all over the world. They not only misguide youth on basis of religion but also buy children for these purposes. The youth is conditioned such that they become human bombs. It is manipulate the pious term “Jihad” and transform it into “terror”.

Health Legal Mirror Social Issues

The Clinical Establishments (Registration and Regulation) Bill, 2010: Will It Change the fate of accident victims?

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The 201st Law Commission report states that “Road accidents are increasing at an alarming rate of 3% annually. About 10.1% of all deaths in India are due to accidents and injuries. A vehicular accident is reported every 3 minutes and a death. A trauma-related death occurs in India every 1.9 minutes.”

In India, the witnesses of an accident become mere spectators due to the fear of subsequent legal procedures and their lack of awareness about pre-medical care. Often the doctors ignore such victims by denying the authorization of these medico-legal cases. There is a lapse of almost 35 to 45 minutes time between the accident and the arrival at the hospital. This is usually because public is very scared to offer any help to the victim. The people are frightened that the same would turn out to be a police case. Very few people take up the responsibility to help him. Some formalities have to be addressed when the victim arrives at the hospital. Ultimately the patient is provided with some treatment. But at times the delay may even result in his death. In such cases the responsibility lies not only on the hospital but on the entire system.

The Court has not remained silent on the issue either. In Parmand Katra v. Union of India the Supreme Court observed that “Every injured citizen brought for medical treatment should instantaneously be given medical aid to preserve life and thereafter the procedural criminal law should be allowed to operate in order to avoid negligent death.” “The patient whether he be an innocent person or be a criminal liable to punishment under the laws of the society, it is the obligation of those who are in charge of the health of the community to preserve life so that the innocent may be protected and the guilty may be punished. Social laws do not contemplate death by negligence to tantamount to legal punishment.”

Samantha Mukherjee a 20 year old student died. The hospital had discontinued his treatment when a fee of RS 15,000 could not be arranged. The National Consumer Disputes Redressal Commission on hearing the case, stated that medical aid cannot be refused on the grounds that victim is unable to pay the fee. The victim’s family was subsequently compensated with Rs.10 lakhs.

Fortunately, the enactment of a new legislation is on the cards. Movies like Munna Bhai M.B.B.S and others have always drawn our attention towards the miserable condition of accident victims who are often left unattended by the doctors. Favorably on 22 February things might change.

The Clinical Establishments (Registration and Regulation) Bill, 2010 if passed by the Parliament would bring smiles to the face of many people. Although it primarily provides a legislative outline for the registration and regulation of clinical establishments in the country. It would also make it mandatory for doctors, hospitals and other medical establishments to treat and stabilize victims of road accidents and other emergency conditions. The act would apply to all systems of medicines and not only particularly to allopathy. The act would also apply to small clinics and even single doctors. The act would however not apply to Armed Forces Medical Service. The Act would primarily be applicable in Arunachal Pradesh, Himachal Pradesh, Mizoram, Sikkim and all the union territories. It is expected to be implemented by other states as well. Similar legislation have already been passed by Delhi, Maharashtra, Punjab, Nagaland, Andra Pradesh and Orrisa. It would also set minimum standards of facilities and services which surely improve the health services in the country.

It is definitely an optimistic step put forth by the legislature. It would highly benefit the accident victims. The victims would not only be given initial medical care but if the hospital is found incompetent to provide the same the patient would be transferred to another hospital with adequate facilities. The doctors would no longer be allowed to leave such patients in agony. They would be obligated to provide them with due medical assistance.

The people must be made aware of the Act by advertisements and other means. The notices should also be displayed in all clinics, dispensaries and hospitals. There is an urgent need for well-equipped and well-maintained ambulances in the country. Pre-medical training must be given at governmental and educational institutions.

In United States the person giving pre-medical assistance to accident victims is not subjected to any kind of damages. Similar position must be adopted in India as well. The common notion that prevails in the country that helping an accident victim would result in problems must be addressed. Law has only a minimum role to play when the moral responsibility of the citizens is involved. The constant fear of the public must be addressed both by the government and the police. For this more and more Community Policing schemes must be encouraged. The people who help accident victims must be given credit and recognition. Saving life is not only by saving people from drowning or murderers but also by providing the adequate medical help at the time of need.