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According to Section 124 of the Indian Penal Code, “whoever, with the intention of inducing or compelling the President of India, or Governor of any State, to exercise or refrain from exercising in any manner any of the lawful powers of such President or Governor, assaults or wrongfully restrains, or attempts wrongfully to restrain, or overawes, by means of criminal force or the show of criminal force, or attempts so to overawe, such President or Governor, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.”
- Further, it is important to note that this is a Non-Bailable, Cognizable offence and triable by Court of Session
- This offence is NOT compoundable.
A Note on Section 124A of Indian Penal Code
- Whoever, by words, either spoken or written, or by signs, or by visible representation, or otherwise, brings or attempts to bring into hatred or contempt, or excites or attempts to excite disaffection towards, the Government established by law in India, shall be punished by imprisonment or fine.
Certain Arguments in favour of the Sedition Law
- In the year 1962, the Honourable Supreme Court of India in the Kedar Nath Singh vs State of Bihar case upheld Section 124A. The Court held that it struck a “correct balance” between fundamental rights and the need for public order.
- Further, the court has reduced the scope of Sedition law to only those cases where there is incitement to imminent violence towards overthrow of the state.
Arguments against section 124A
- Arguments against section 124A suggest that it stifles the democratic right of people to criticize the government.
- In the Menaka Gandhi case, the Honourable Supreme Court of India had held that freedom of speech and expression is not confined to geographical limitations and that it carries with it the right of a citizen to gather information and to exchange thought with others not only in India but abroad too.
- Thus, stemming from this, criticism against the government policies and decisions within a reasonable limit that does not incite people to rebel is consistent with freedom of speech and expression.
- Recently, R.R. Gopal, Editor of the Tamil magazine Nakkheeran was arrested.
- The Tamil Nadu Governor’s office had complained to the police, seeking to book Mr. Gopal under Section 124 of the IPC. The Governor’s office had cited some articles published in the magazine.
- It is important to note that this section, was seldom used even during colonial times. It applies to assaulting high constitutional functionaries such as the President and the Governor with “an intent to compel or restrain the use of any lawful power”.
- The important point to note here is that whether the articles in question were in bad taste or not is the subject for a separate debate. But however offensive or derogatory the articles may have been, they did not attract Section 124.
- The present Governor of Tamil Nadu, Banwarilal Purohit had threatened a few months ago to use Section 124, when the DMK staged black flag demonstrations at sites where the Governor held meetings with district-level officials.
- Going into specifics, it is doubtful whether a black flag demonstration can be construed as an attempt to “overawe” the Governor in a manner that restrains his office from exercising power.
- Further, being “overawed”, at the very least, would suggest the commission of an offence that poses a real danger to the exercise of authority. To extend the meaning of “overawe” to a work of journalism raises many questions.
- What further raises question marks is the claim in the police complaint prepared by the Deputy Secretary to the Governor that the offending articles express an “intention of inducing or compelling the Governor… to refrain from exercising his lawful powers”.
- The articles published in the Tamil magazine had linked Mr. Purohit’s name to the controversy surrounding assistant professor Nirmala Devi, who is in jail for allegedly trying to lure students into sex work.
- In conclusion, it is believed that if Mr. Purohit believed they were unfounded and damaged his reputation, there were other forms of legal redress available to him.
- By seeking registration of a Section 124 case against the magazine’s Editor, journalists and employees, the Governor’s office has only turned the spotlight on itself unnecessarily.
- It is believed that he should withdraw the complaint now as it is unlikely that the Tamil Nadu police will take such a decision on its own.
- The recent judgement by the Honourable Supreme Court of India towards decriminalizing Section 377 of the Indian Penal Code should be celebrated for ejecting an ugly Victorian norm from the Indian criminal justice system.
- This landmark decision breaks new ground by removing restrictions that made consensual sexual relations between members of the same sex and the transgender population a crime.
- However, experts believe that this judgment of the Supreme Court will, however, likely have unintended negative consequences for one group that has used Section 377 to protect itself from sexual violence — women.
Married Women and Section 498A of the Indian Penal Code
- It is important to note that an overwhelming majority of women who utilised Section 377 of the IPC at police stations are abused and physically tormented married women.
- Utilising new data as well as research conducted at police stations across Bihar, Uttar Pradesh, and Haryana, we find that female complainants invoked most cases of Section 377 in the context of Section 498A.
What is Section 498A?
- In an attempt made towards safeguarding the interest of woman against the cruelty they face behind the four walls of their matrimonial home, the Indian Penal Code,1860 was amended in 1983 and inserted S.498A which deals with ‘Matrimonial Cruelty’ to a woman.
- Matrimonial Cruelty in India is a cognizable, non bailable and non compoundable offence.
- Whoever being the husband or the relative of the husband of a woman, subjects her to cruelty shall be punished with imprisonment for a term, which may extend to three years and shall also be liable to a fine.
- Critics believe that ever since Section 498A of the Indian Penal Code was diluted by the Supreme Court last year (2017), it became more difficult for women to utilise the one law that had some teeth in deterring husbands from causing harm to their wives.
- It is important to note that in the Indian criminal justice system, Section 498A has a connotation as a “minor” gendered crime. This is partly why the Supreme Court suggested that first information reports should not be registered immediately after such a case comes before a police officer.
- The court mandated that no arrests or coercive action based on the law should be carried out until “family welfare committees” had looked into a case under Section 498A, and reconciliation centres had made an effort to resolve the couple’s differences.
- Thus, in other words, woman and spouse would be “counselled” before the case was handled by the justice system.
- In a particular study, that involved research conducted at police stations across Bihar, Uttar Pradesh, and Haryana, it was found that for every hundred Section 377 cases, more than half are filed by women in the context of Section 498A.
The particular relation between Section 377 and Section 498A of the Indian Penal Code :
- It is important to note that women who register spousal abuse, especially in the form of Section 498A, often do so as a case of last resort.
- Further, in extreme circumstances, women encourage police officers to register an additional case of Section 377 against their husbands.
- This is done to elevate the “heinousness” of Section 498A, i.e., to signal to the police that their abuse is not simply “cruelty” but also one of sexual abuse.
- Crucially, Section 498A has the lowest conviction rate of any law in India, and by tacking on Section 377, women are potentially able to increase the likelihood of the husband being punished.
- In a legal context in which marital rape is not recognised, Section 377 emerges as a tool for married women to highlight the “unnatural” abuse they face.
- Importantly, the media in Kerala have found that the use of Section 377 is often added to the Protection of Children from Sexual Offences (POCSO) Act to increase POCSO’s stringency.
Possible view taken on Section 377 and Section 375:
- In its recent judgment, the Honourable Supreme Court of India appears to have been conscious of the fact that Section 377 has been used to protect women but implied that as Section 375 (rape) already criminalises non-consensual acts, Section 377 is redundant when applied to women.
- Further, the court also implied that Section 377 was obsolete because the Criminal Law (Amendment) Act, 2013 broadened the scope of Section 375 to include non-penile-vaginal penetration, “thereby plugging important gaps in the law governing sexual violence in India”.
- While Section 377 will now apply to minors and in cases of bestiality, it is still unclear as to whether or not abused married women will be able to use the law in quite the same way as they did before.
What is bestiality?
Bestiality refers to sexual relations between a human being and an animal.
There are important points to note here in this regard:
- The Supreme Court of India has made it clear that sex with animals will remain an offence.
- The court also said that any discrimination on the basis of sexual orientation is a violation of fundamental rights.
Finally, it is important to note that if women are physically abused by their husbands, they should be able to register a case easily.
- A far more effective and progressive strategy would be for the state to now criminalise marital rape. This could be done by passing a new law or merely removing the exemption in Section 375.
- The Non-Aligned Movement (NAM) was created and founded during the collapse of the colonial system and the independence struggles of the peoples of Africa, Asia, Latin America and other regions of the world and at the height of the Cold War. During the early days of the Movement, its actions were a key factor in the decolonization process, which led later to the attainment of freedom and independence by many countries and peoples and to the founding of tens of new sovereign States. Throughout its history, the Movement of Non-Aligned Countries has played a fundamental role in the preservation of world peace and security.
- While some meetings with a third-world perspective were held before 1955, historians consider that the Bandung Asian-African Conference is the most immediate antecedent to the creation of the Non-Aligned Movement.
- This Conference was held in Bandung on April 18-24, 1955 and gathered 29 Heads of States belonging to the first post-colonial generation of leaders from the two continents with the aim of identifying and assessing world issues at the time and pursuing out joint policies in international relations.
- This First Summit of the Movement of Non-Aligned Countries was convened by the leaders of India, Indonesia, Egypt, Syria and Yugoslavia. On April 26, 1961, the Presidents of the Arab Republic of Egypt (Nasser) and Yugoslavia (Tito) addressed the Heads of State and Government of 21 “non-Aligned” countries and suggested that, taking recent world events and the rise of international tensions into account, a Conference should be held to promote an improvement in international relations, a resistance to policies of force and a constructive settlement of conflicts and other issues of concern in the world.
- The Movement played an important role in the support of nations which were struggling then for their independence in the Third World and showed great solidarity with the most just aspirations of humanity.
- It contributed indisputably to the triumph in the struggle for national independence and decolonization, thus gaining considerable diplomatic prestige.
The ten principles of Bandung:
- Respect of fundamental human rights and of the objectives and principles of the Charter of the United Nations.
- Respect of the sovereignty and territorial integrity of all nations.
- Recognition of the equality among all races and of the equality among all nations, both large and small.
- Non-intervention or non-interference into the internal affairs of another -country.
- Respect of the right of every nation to defend itself, either individually or collectively, in conformity with the Charter of the United Nations.
- Non-use of collective defense pacts to benefit the specific interests of any of the great powers.
- Non-use of pressures by any country against other countries.
- Refraining from carrying out or threatening to carry out aggression, or from using force against the territorial integrity or political independence of any country.
- Peaceful solution of all international conflicts in conformity with the Charter of the United Nations.
- Promotion of mutual interests and of cooperation.
- Respect of justice and of international obligations
A Few More Notable Points:
- The movement has succeeded to create a strong front on the International level, representing countries of the third world in the International organizations on top of which the United Nations.
- Current Challenges facing the NAM include the necessity of protecting the principles of International law, eliminating weapons of mass destruction , combating terrorism, defending human rights, working toward making the United Nations more effective in meeting the needs of all its member states in order to preserve International Peace , Security and Stability, as well as realizing justice in the international economic system.
- On the other hand, the long-standing goals of the Movement remain to be realized. Peace, development, economic cooperation and the democratization of international relations, to mention just a few, are old goals of the non-aligned countries.
- In conclusion, The Non-Aligned Movement, faced with the goals yet to be reached and the many new challenges that are arising, is called upon to maintain a prominent and leading role in the current International relations in defense of the interests and priorities of its member states and for achievement of peace and security for mankind.
- It is important to note that the Non-Aligned Movement (NAM) and its precursor, the Bandung Afro-Asian conference in 1955, were examples of soft balancing by weaker states towards great powers engaged in intense rivalry and conflict.
- Since the NAM countries had little material ability to constrain superpower conflict and arms build-ups, these newly emerging states under the leadership of India’s Jawaharlal Nehru, Egypt’s Gamal Abdel Nasser and Indonesia’s Sukarno, and later joined by Yugoslavia’s Josip Broz Tito, adopted a soft balancing strategy aimed at challenging the superpower excesses in a normative manner, hoping for preventing the global order from sliding into war.
The Hidden Narrative of NAM:
- Oftentimes, the NAM is not credited enough for what it deserves. This is because by the 1970s, some of the key players, including India, began to lose interest in the movement as they formed coalitions with one or the other superpower to wage their conflicts with their neighbours.
- Further, some experts believe that the NAM has not been theorised by scholars properly.
- Further, the Western countries have often portrayed the idea of non-alignment as pro-Soviet or ineffective.
- The general intellectual opposition which the NAM faced was the result of the Western scholarly bias against a coalitional move by the weaker states of the international system.
- Some experts believe that this is very similar to how upper classes or castes respond to protest movements by subaltern groups in highly unequal and hierarchical societies.
The Context of NAM:
- Experts assert that it is often forgotten as to when the Bandung meeting took place. The Bandung meeting took place when the world was witnessing an intense nuclear arms race, in particular, atmospheric nuclear testing. The fear of a third world war was real. There were many crises which were going on in Europe and East Asia, with the fear of escalation lurking. Further, the vestiges of colonialism were still present.
- In essence, one narrative which we should take into account is that the international system is hierarchical and the expectation is that the weaker states should simply abide by the dictates of the stronger ones.
- Despite all its drawbacks, the NAM and the Afro-Asian grouping acted as a limited soft balancing mechanism by attempting to delegitimize the threatening behaviour of the superpowers.
Impact on Nuclear Tests:
- It is important to note that the non-aligned declarations on nuclear testing and nuclear non-proliferation especially helped to concretise the 1963 Partial Test Ban Treaty.
- The non-aligned declarations also helped create several nuclear weapon free zones as well as formulate the Nuclear Non-proliferation Treaty.
- Currently, across the world, there are important developments to take note of: We see that the great powers are once again launching a new round of nuclear arms race and territorial expansion and militarisation of the oceans.
- Thus, in response to this, a renewed activism by leading global south countries may be necessary to delegitimize their imperial ventures, even if they do not succeed immediately.
- Currently, we see that the freedom of navigation activities of the U.S. are generating hostile responses from China, which is building artificial islets and military bases in the South China Sea and expanding its naval interests into the Indian Ocean.
- As a consequence to this, smaller states would be the first to suffer if there is a war in the Asia-Pacific or an intense Cold War-style rivalry develops between the U.S. and China.
- Many questions arise. For example: What can the smaller states do? Can they develop a new ‘Bandung spirit’ which takes into account the new realities?
- Experts suggest that these small states could engage in soft balancing of this nature hoping to delegitimize the aggressive behaviour of the great powers.
- It is important to note that the rise of China and India, with their own ambitious agendas, makes it difficult that either will take the lead in organising such a movement.
- In conclusion, experts suggest that more concrete initiatives may have to rest with emerging states in the Association of Southeast Asian Nations (ASEAN) grouping.
- Two recent developments on the margins of the United Nations General Assembly suggest that “South Asia” as a political construct, at least the one built from the top down, may have had its moment
- According to reports, three of the eight South Asian foreign ministers left the room after making their speeches at the annual gathering in New York
- They were from Afghanistan, Bangladesh and India
- This shows the deepening crisis of credibility of the South Asian Association for Regional Cooperation
- The second was an event that did not take place. A meeting between the foreign ministers of India and Pakistan.
- Within 24 hours after announcing talks, India chose to pull out
Pakistan is a common problem
- India, of course, is not the only one having problems with Pakistan
- Its other South Asian neighbour, Afghanistan, like India, had entertained hopes for a fresh beginning in the ties with Pakistan
- Kabul’s hopes that new PM can quickly deliver on peace have been tempered
- Pakistan’s relations with Bangladesh have been in a deep chill for such a long time that no one expects a reversal of fortunes any time soon
Moving ahead of SAARC
- The SAARC project has now lost all steam
- All countries are finding alternatives
- After the Kathmandu Summit, PM Modi declared that he will not hold regional cooperation hostage to Pakistan’s veto
- India moved to focus on the so-called BBIN forum that brings together four countries of South Asia — Bangladesh, Bhutan, India and Nepal — for sub-regional cooperation in the eastern Subcontinent
- The government has also sought to reactivate the BIMSTEC forum that brings the BBIN countries as well as Sri Lanka with Myanmar and Thailand
SAARC partners not sharing the same thoughts
- Not everyone in these subregional and trans-regional groupings has the same dream
- Even as Kathmandu sleeps in the BBIN and BIMSTEC beds, sections of Nepal’s ruling elite want to “escape” South Asia into the vast folds of the Chinese embrace
- Sri Lanka has begun to describe itself as an Indian Ocean country
- The Maldives, too, has so much to gain by leveraging its Indian Ocean location rather than pin its hopes on the dystopian SAARC
Influence of China increasing
- China’s Belt and Road Initiative is connecting different parts of South Asia to the adjoining provinces of China
- Pakistan is being connected with Xinjiang, Nepal and Bhutan with Tibet, and Bangladesh with Yunnan
- Beijing also seeks to integrate the Maldives and Sri Lanka into its maritime strategy
- China’s rise has begun to irrevocably alter the economic geography of the Subcontinent
America’s balancing act
- Washington is changing its geopolitical playbook for our neighbourhood
- Even as it looks for a way out of Afghanistan, it has embarked on an explicit strategy of balancing China in the region
- Its new imagination privileges India and merges the rest of the Subcontinent into the vast Indo-Pacific
- “Political South Asia” was an invention of the 1980s. It has not survived the test of time
- As India’s footprint goes way beyond the Subcontinent, Bangladesh becomes the throbbing heart of the Bay of Bengal and an economic bridge to East Asia and Sri Lanka emerges as an Indian Ocean hub, Delhi needs to reimagine its economic and political geography
- This year marks the 25th anniversary of the National Human Rights Commission (NHRC)
- The Commission, which draws its mandate from the Protection of Human Rights (PHR) Act 1993, has been mired in controversies since its formation
- The government seeks to introduce amendments to the Act in Parliament’s Winter Session
- The proposed amendment will strengthen human rights institutions for the effective discharge of their mandates, role and responsibilities
- The salient features of the proposed amendments bill include making the National Commission for Protection of Child Rights as deemed member of the National Human Rights Commission, adding a woman member in the composition of the commission, enlarging the scope of eligibility and scope of selection of chairperson, NHRC as well as State Human Rights Commissions (SHRCs)
- It also proposes to incorporate a mechanism to look after the cases of human rights violation in Union Territories, to amend the term of office of chairperson and members of the NHRC and SHRCs to make them in consonance with the terms of chairperson and members of other commissions.
- The amendment to the Protection of Human Rights Act, 1993 will make NHRC and state human rights commissions more compliant with the Paris Principle concerning its autonomy, independence, pluralism and wide-ranging functions in order to effectively protect and promote human rights
Grading of NHRC
- In 1993, the UN General Assembly adopted the Paris Principles on Human Rights
- This led to the constitution of national human rights institutions in almost every country
- Every five years, India’s human rights agency, the NHRC, has to undergo accreditation by an agency affiliated to the UN Human Rights Council (UNHCR)
- The Commission’s compliance with the Paris Principles is ascertained in this process, which is similar to NAAC accreditation of Indian colleges — better the grade, higher the benefits
- In 2016, the accreditation agency deferred grading the NHRC because of the Commission’s poor track-record — especially, political interference in its working
- But the agency was satisfied with the government’s commitment to introduce necessary changes to the Commission and granted the NHRC A-status in 2017
- The PHR (Amendment) Bill, 2018 is an outcome of this commitment
Problems with NHRC
- The selection committee tasked with appointing the chairperson and the members to the Commission is dominated by the ruling party
- It consists of the prime minister, home minister, Leaders of the Opposition in the Lok Sabha and Rajya Sabha, the Lok Sabha Speaker and the Deputy-Chairman of the Rajya Sabha
- NHRC’s selection process is very obscure
- Very often, the government does not publicise vacancies in the Commission & the criteria to assess candidates is also not specified
- As a result, appointments to the NHRC have been fraught with disputes
- The much-needed diversification that the Amendment Bill seeks to introduce could be realised through the inclusion of civil society members and academicians with a proven track record in the improvement of human rights
- The NHRC could certainly benefit from the grassroots level experience, widespread community outreach and the expertise of these organisations or individuals
Need of officers
- Police officials investigating for the NHRC are sent on deputation by their forces
- Their allegiance lies with their home cadre to which they return after their tenure at the Commission is over
- This conflict of interest restricts the scope of their work, as they often are charged with investigating abuse of power by law enforcement personnel
- These officials are not answerable to anyone, there is no parliamentary oversight on their functioning, they do not owe financial accountability to the Comptroller and Auditor General, and have often been accused of human rights violations themselves
- The NHRC urgently requires officers of its own to carry out independent investigations, and the government should provide it resources for the same
- The Amendment Bill intends to strengthen human rights institutions in this country. But it falls short of this objective by some distance
- A year after the Supreme Court called the NHRC a “toothless tiger”, the onus is on the government to bestow the Commission with more teeth
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