Non-Custodial Measures Involved in Treating A Child in
Conflict with Law : A Holistic Approach

(By Mary Reshma George,  Advocate, High Court of Kerala)

 

Introduction

“No one has yet fully realized the wealth of sympathy, kindness and generosity hidden in the soul of a child. The effort of every true education should be to unlock that treasure.”

                                                                                              - Emma Goldman

 

Whenever there is a CHILD IN CONFLICT WITH LAW, it is always the concern of the system to adopt a better method for social reintegration and rehabilitation for the welfare of the child. The crux of prescribing punishments is to alter their behavior and regain their values to form a better citizen. Non-custodial measures are always a matter of practical concern for the system in its day to day affairs due to larger number of accusation of children.

The insecure and precarious atmospheres of the prisons are not suitable for proper nurturing of children in conflict with law. The unpredictable living conditions of the supremely important national asset or the future generation will lead to a perilous future. National laws should be in full compliance with United Nations Convention on the Rights of the Child, and the primary consideration of Laws should be the best interest of the child. In Indian legal scenario, the legal framers tried their level best to safeguard the rights and interests of children in conflict with law for their ultimate rehabilitation through non-custodial measures, in harmony with international law.

Child in Conflict with Law

A child who is alleged or found to have committed an offence and who had not completed eighteen years of age on the date of commission of such offence is known as Child in Conflict with Law.¹The Children Act, 1960 was the first uniform code for children in India, before that different states in India followed different legislations.² Earlier the child in conflict with law was termed as ‘Juvenile delinquent’³ and later it was termed as ‘Juvenile in Conflict with Law’⁴ and now the Parliament confirmed the term as ‘Child in conflict with law’⁵ after various discussions throughout the States.⁶ After Delhi Gang Rape Case, the criminal responsibility of the children above sixteen years got increased.⁷

Social stigmatization due to various reasons like poverty, broken families, illiteracy, unemployment, excessive parental control, lack of parental control, the influence of peer groups etc., are the causes for uncontrolled behavior of the children.⁸

Non-Custodial measures

Non-custodial measures are those measures adopted as an alternative to prison for better reintegration of a wrongdoer to the society by reforming the person with the help of psychological therapy and individual care plans. Children need proper care and protection to look forward for a better future.⁹ The Criminal Justice system applied to adults is not suitable for the child-in-conflict with law. The Act, therefore, provides for care, protection, treatment, development and rehabilitation of the children in conflict with law¹⁰. In Ratan Lal v. State of Rajasthan¹¹, the Court held that accused being a child he could only be tried by the Juvenile Justice Court.¹²

Section 21¹³ restricts any sentence to death or life imprisonment without the possibility of release to the children in conflict with law. Prison is not an appropriate remedy for the reformation of children. Law restricts the joint proceeding of children along with adults.¹⁴

Juvenile Justice Board in many issues found that non-custodial measures are more apt for children in conflict with law¹⁵. Section 24 of the Act¹⁶ removes all the disqualification attaching to the conviction of child in conflict with law as a remedial measure with due care and caution. No proceedings under Chapter VIII of the Criminal Procedure Code shall apply against children.¹⁷

India ratified United Nations Convention on the Rights of the Child (UNCRC) and we are bound to accomplish the conditions and guidelines enshrined in the Convention. Article 40(4) of the UNCRC mentions the non-custodial measures which can be adopted for treating children in conflict with law. It states as follows: “A variety of dispositions, such as care, guidance and supervision orders, counseling, probation, foster care, education and vocational training programmes and other alternatives to institutional care shall be available to ensure that the children are dealt with in a manner appropriate to their well-being and proportionate both to their circumstances and the offence.”

In Gopinath Ghosh v.State of West Bengal¹⁸, an argument was raised on behalf of the appellant therein for the first time in the Supreme Court that on the date of offence the appellant was aged below 18 years and was, therefore ‘child’ within the meaning of the expression ‘child’ as contained in the West Bengal Children Act, 1959 and, therefore, the Court had no jurisdiction to sentence him to suffer imprisonment, after holding a trial. Court in this case observed that: “…children are given opportunities and facilities to develop in the healthy manner and in conditions of freedom and dignity and that childhood and youth are protected against exploitation and against moral and material abandonment, we consider it proper not to allow a technical condition that is being raised in this Court for the first time to thwart the benefit of the provisions being extended to the appellant, if he was otherwise entitled to it.”

Types of Non-Custodial measures under the legislation

Children need special care while prescribing punishments due to their immaturity and absence of mens rea.¹⁹Children sent to the observation homes and shelter homes shall always be under peer pressure and circumstantial demands. A pigeon inside the golden cage will always try to flee away from that cage. The rationale behind adopting the non-custodial measures is to make a child friendly approach²⁰ by providing resources to make them as better human beings. Preamble to the Juvenile Justice (Care and Protection of Children) Act, 2015 wonderfully explains the purpose of the Act.²¹ Proper care, treatment and social re-integration of the child is possible only through non-custodial measures. Section 18 of the 2015 Act provides some measures to exclude detention.

The major types of non-custodial measures enshrined in the Juvenile Justice System in India inter alia include as follows:

i.    Restoration to his own family²²

ii.   Counselling²³

iii.  Group Counselling²⁴

iv.  Community Services²⁵

v.   Fine²⁶

vi.  Probation of good conduct²⁷

vii.Place of safety

viii. Reformation measures adopted in Section 18(2)

V. Fine⁴³

Fine has been imposed in certain cases especially when the children are earning themselves. For some cases, the Juvenile Justice Board imposes fines on their parents.

VI.Probation of good conduct ⁴⁴

Whenever the Juvenile Justice Board deals with the matters of the child in conflict with law, it always makes a lenient stand to send them to their own homes for probation of good conduct.

VII.Place of Safety

Place of safety as per Section 2(46) means any place or institution, not being a police
lockup or jail, established separately or attached to an observation home or a special home, as the case may be, the person-in-charge of which is willing to receive and take care of the children alleged or found to be in conflict with law, by the order of the Board, both during inquiry and ongoing rehabilitation after having been found guilty for a period and purpose as specified in the order.

VIII. Reformation measures adopted in Section 18(2)

The Board may pass additional orders to attend school or attend a vocational training centre or attend a therapeutic centre or prohibit the child from visiting, frequenting or appearing at a specified place or to undergo a de-addiction programme as non-custodial measures.

IX. Bail

Bail is a non-custodial measure in the pre-trial stage. Section 12 of the Act dealt with ‘Bail to a person who is apparently a child alleged to be in conflict with law.’ The Child who is apprehended for a bailable or non-bailable offence can be released on bail with or without surety or placed under the supervision of a probation officer or under the care of any fit person. If the release is likely to bring the child into association with any known criminal or exposed to any criminals or such person who will degrade his moral, physical or psychological upbringing then the Board can deny his release to meet the ends of justice.⁴⁵ Hon’ble Court held in Kamil v. State of Uttar Pradesh⁴⁶that a child in conflict with law “may be released on bail with or without surety but such release shall not be possible if there appear to be reasonable grounds for believing that such release is likely to bring him into association with any known criminal or expose him to moral, physical or psychological danger or his release would defeat the ends of justice. Welfare of the child is the need of the day and the provisions contemplate a judicial officer with more sensitive approach oriented outlook.”

When the apprehended person is not released on bail then he should be kept in an observation home or place of safety. Board has the power to modify the bail conditions.⁴⁷

Justice Vikramajit Sen in Nagoor Pichai @ Badusha v. State Tr. Sub-Inspector of Police⁴⁸,
found that the petitioner was over 21 years and if he is detained in Borstal school then he may detrimentally influence younger persons and thus rejected the application of bail on the ground that it is devoid of merit.

X.  Fit Person⁴⁹

A fit person will be the person who is responsible for the care and protection of the child in conflict with law. Fit person is a person who is prepared to own the responsibility of a child. Board identifies the person after proper inquiry. Section 2(28) of the 2015 Act defines the term fit person.

In Amrita Ahluvalia v. Union of India⁵⁰, Court stated that a parent or a guardian would be regarded as unfit to exercise control if the manner in which the exercise of control is such as is not expected of a loving parent. If the parent doesn’t willingly or unwillingly, knowingly or unknowingly discharge their parental duties or functions or act in the interest of the child and if the Board comes to the conclusion that there is little likelihood of the parent so discharging the duties, then the Board would be justified under Section 15 of the 2000 Act in coming to the conclusion that the child is a neglected child in conflict with law.

The fit person with credentials, respectability, expertise, professional qualifications, the experience of dealing with children and their willingness to receive the child, temporarily receives the child for care, protection or treatment for a period of 30 days. He should not have been accused of any offence of moral turpitude, child abuse or child labor.⁵¹

XI. Fit Facility⁵²

A facility run by a governmental organization or a registered voluntary or non-governmental organization prepared to temporarily own the responsibility of a particular child for a specific purpose can be considered as a fit facility under Section 2(27). The organization
to take care of the child in such manner as may be prescribed under Section 51 of the latest amendment.

XII. Financial Support

Financial support is mentioned in Section 46 of the 2015 Act in order to facilitate child’s re-integration into the mainstream of the society.

XIII.Open Shelter

Open shelter is a community-based facility of children in need of residential support, on short-term basis, with the objective of protecting them from abuse or weaning them or keeping them away from a life on the streets under Section 43.

XIV. Sponsorship

Section 2(58) explains sponsorship as a supplementary support, financial or otherwise, to the families to meet the medical, educational and developmental needs of the child. The sponsorship can be individual, group sponsorship or community sponsorship to improve the quality of life of children.⁵³

XV.  Individual Care Plan

Every child in conflict with law needs an individual care plan for their psychological and sociological empowerment. An individual care plan is a comprehensive development plan with case history prepared in consultation with the child to restore the child’s self-esteem, dignity and self-worth and also to nurture them into a responsible citizen.

Rehabilitation and Social Reintegration of the Child in conflict with law

Rehabilitation and Social Reintegration is the ultimate aim behind non-custodial measures.⁵⁴ The process of rehabilitation and social integration of children are possible through individual care plan of the child, preferably through family-based care such as by restoration to family or guardian with or without supervision or sponsorship or adoption or foster care.⁵⁵ In cases of children in conflict with law, the process of rehabilitation and social integration shall be undertaken in the observation homes, if the child is not released on bail or in special homes or place of safety or fit facility or with fit person, if placed there by the order of the Board.

Government should ensure effective linkages between various governmental, non-governmental, corporate and other community agencies for facilitating the rehabilitation and social reintegration of the child.

Detention will destroy the proper upbringing of the child⁵⁶ and the lawmakers properly avoided punishments like imprisonment and death penalty. Data shows that Children in conflict with Law are escaping from Observation Homes at regular intervals.⁵⁷ The children are ready to go to jails than the observation homes due to the pathetic atmosphere of the homes throughout the country.⁵⁸ The standards mentioned by the legislation are severely compromised.⁵⁹ It has no infrastructural facilities, no proper repatriation and proper care.⁶⁰The Restoration and Follow-up of child is the necessary attribute for Non-custodial measures. There are other methods like adoption⁶¹, foster care⁶², Shelter Homes⁶³, Special Homes for the social reintegration and rehabilitation of the children.

The most important aspects which need to be checked while dealing with the matters of the child in conflict with law all over the world are a) whether the act is a punishable offence if the crime has been committed by an adult b) does he is having the maturity c) the act is not illegal when the act was done by a child d) whether he is a habitual offender who needs treatment e) whether the child in conflict with law is concerned with emotionally, physically or potentially neglected child f) whether he belongs to the deserted, deprived and abandoned category etc. All these factors should be determined before punishing the child.

In Scotland, the Juvenile Justice system is based on the Social Work (Scotland) Act, 1968 along with Kilbrandon Report (1968).

Factors articulating the need for non-custodial measures

If the child in his/her tender age has been arrested or detained for any reason, that will directly or indirectly affect their future and it will be the total destruction of his/her childhood. The legal outlook while dealing with the child in conflict with law should always be ‘protective’ in nature.

Age as a factor: - Age is a determining factor while dealing with nature of the crime and the attitude of criminals. In Fakharuddin v.State of U.P.⁶⁴, Court stated that the date of commission of a crime should be treated as relevant date for the determination of age and not the date on which the accused appeared or was before the Court. In Sakha Ram v.State of M.P.⁶⁵, the Court opined that when the presumption of ‘innocence’ of the child in conflict with law is sought to be displaced by the prosecution on the basis of circumstantial evidence, the circumstances must unmistakably prove the guilt beyond doubt.

Criminal responsibility of the children has been different in different Countries. In France and Poland, it is 13 years of age. In Germany and Italy, the child who attains 14 years of age is considered to be mature enough to understand what is right and what is wrong. In Finland child should reach the 15years of age.

In State of U.P. v.Kuldip Singh⁶⁶, the Trial Court acquitted the accused stating that the prosecution failed to prove the age of the boy less than 14 years of age. It was held that the TrialCourt committed no error in acquitting the accused. The Hon’ble Court held in Jayendra v.State of U.P., that where an accused had been wrongly sentenced to imprisonment instead of being treated as a ‘child’ under Section 2(4) of U.P. Children Act, and sent to an approved school and the accused had crossed the maximum age of detention in an approved school viz., 18 years, the course to be followed is to sustain the conviction but, however, quash the sentence imposed on the accused and direct his release forthwith.⁶⁷

In Umesh Chandra v.State of Rajasthan⁶⁸, Court observed that the relevant date for determining the age was the date of the offence. This was confirmed in Pratab Singh v.State of Jharkhand & Ors⁶⁹. Court stated that ‘the reckoning date for the determination of the age’ of child in conflict with law is the ‘date of the offence’ and not the date when he is produced before the authority of the Court.

Inquiry:- The legislation is prescribing inquiry for each and every aspect of the rehabilitation of the children in conflict with law.

Actions taken in Good Faith: -- It is the social circumstances of the child which makes him a wrongdoer and punishing them without considering their age should not be encouraged. Even the mere chance of a good change in the child should be explored. Innocence of the child should not be severely punished. All actions are to be taken in good faith for the betterment of the child.

Restriction on Media:-- Media is prohibited from disclosing the identity of the child in conflict with law under Section 74 of the Act.

Welfare of the Child: - The Welfare of children is the main motive of the legislation dealing with the child in conflict with Law.

Principles behind the Non-Custodial Measures

Non-custodial measures are part of reformative theory on the sublime philosophy that every man is born free and equal but circumstances transform them into criminals. If every saint has a past then every sinner has a future is the tested philosophy concerning human life.⁷⁰

Justice V.R.Krishna Iyer outlined the principles of sentencing policies in Mohammed Giasuddin v.State of Andhra Pradesh⁷¹and stated that “ If the psychic perspective and the spiritual insight we have tried to project is valid, the police bully and the prison drill cannot minister to a mind diseased, nor tone down the tension, release the repression, unbend the prevention, each of which shows up a debased deviance, violent vice and behavioral turpitude. It is a truism, often forgotten in the hidden vendetta in human bosoms, that barbarity breeds barbarity, and injury recoils as injury, so that if healing the mentally or morally manned or malformed man found guilty is the goal, awakening the inner being, more than torturing through exterior compulsions, holds our better curative hopes.”

The theory of reformation helps to recover the good man out of a child in conflict with law. The leading principles to follow the non-custodial measures underlined under Section 3
of the 2015 Amendment are as follows:

■  Principle of presumption of innocence :-

The child in conflict with law cannot be treated like an adult offender or criminal. The absence of mens reais one of the vital characteristics of child in conflict with law. The authorities are supposed to take a lenient stand while dealing with them. The restorative and protective justice to the children in conflict with law are given on the basic assumption that the children cannot clearly identify ‘what is right and what is wrong’ and they also fail to realize the consequences of their acts. The amount of culpability is much less in the cases of children. Sections 82 & 83 of Indian Penal Code give certain exceptions to the children owing to their innocence. The Child in conflict with law is presumed to be innocent without any mala fide intention and the presumption of innocence should be respected throughout the judicial process.

■  Principle of dignity and worth :-

This principle reflects the fundamental human right enshrined under Article 1 of the Universal Declaration of Human Rights that all human beings are born free and equal in dignity and rights and they should be treated equally.

Children in conflict with law are the most vulnerable category and always exposed to dangerous and hazardous situations. Non-custodial measures with adequate counselling and treatment nurture them to lead a good life.

■  Principle of participation:-

Every child shall have a right to be heard and participate in all processes and decisions affecting his/her interest and the opinions and views of the child are to be taken into consideration, with due regard to the age and maturity of the child. The Board should send them free with proper guidelines unless there is an interruption to let them free.

■  Principle of Best Interest: -

This principle seeks to ensure the physical, emotional, intellectual, social and moral development of a child in conflict with law so as to ensure the safety, well being and permanence for each child and thus enable each child to survive and reach his or her full potential. Retributive and repressive theories may be giving away with the sense and essence of rehabilitative and restorative justice.⁷²

The best interest principle has been adopted whenever the system deals with the child in conflict with law. India has a hefty population of street children without any family or asylum, neglected by their parents and society at large. These children will get wedged in the mustiness of law easily because of their zenith of necessity. No one is there to guide or to give proper advice and admonitions for their better future. The only method to protect these children effectively is through non-custodial measures. Most of the time, the adults are taking advantage of children as carriers of illegal drugs, terrorist activities, to act as pimps of brothels and also for selling illicit liquors of alcohol mafia. Best Interest of the child is the guiding principle emphasized by the UN Convention on the Rights of the Child for rehabilitative and restorative justice. The child friendly approach can help the children under tender age and immaturity for an easier and satisfactory rehabilitation.

■ Principle of family responsibility :-

The primary responsibility of care, nurture, support and protection of the child shall be that of the biological parents. However, in exceptional situations, this responsibility may be bestowed on willing adoptive or foster parents. Family plays the vital role in formulating the ideologies and values of the child in conflict with law. The appropriate directions from the family can make a crucial change for better treatment.

■ Principle of Safety (no harm, no abuse, no neglect, no exploitation and no maltreat-ment):-

A place without any harm, abuse, neglect, exploitation or maltreatment is a dream for most of the children under custody. Most of them are coming from unforeseen circumstances and they are exploited by adult criminals. The values they derived from the society are worse than our imaginations. No wonder that a maximum exploited children are exploiting or treating others in the same way as they were treated. Effective non-custodial measures are the only method for a better treatment of the child. All measures shall be taken to ensure that the child is safe and is not subjected to any harm, abuse or maltreatment while in contact with the care and protection system, and thereafter.⁷³

■ Positive measures:-

All resources are to be mobilized including those of family and community, for promoting the well-being, facilitating the development of identity and providing an inclusive and enabling environment, to reduce vulnerabilities of children and the need for intervention under this Act under the general principles mentioned in Section 3 of the latest amendment. The positive measures shall aim at reducing vulnerabilities and reducing the need for intervention under the law, as well as the effective, fair and humane dealing of the child with better avenues for health, education, relationships, livelihoods, leisure, creativity and play. Institutionalization should not be encouraged if there is any availability of non-custodial measures.

■ Principle of non-stigmatizing semantics:-

Adversarial or accusatory words such as arrest, remand, accused, charge sheet, trial, prosecution, warrant, summons, conviction, inmate, delinquent, neglected, custody or jail are not to be used in the processes pertaining to a child. In most of the case, the children in conflict with law have been facing social castigation which is always accompanied by trauma. They are ill-treated by the society because of the offence and their innocence towards the crime is always ignored. Thus, a child in conflict with law had no other options other than becoming a criminal or offender. This situation can be avoided by applying this principle along with non-custodial measures.

■ Principle of non-waiver of rights

No waiver of rights of the child in conflict with law, whether by himself or the competent authority or anyone acting or claiming to act on behalf of the child, is either permissible or valid. Non-exercise of a fundamental right does not amount to the waiver. Non-custodial measures are the more successful rehabilitative technique for preserving the rights of these children.

■ Principle of equality and non-discrimination:-

There shall be no discrimination against a child in conflict with law on the basis of age, sex, place of birth, disability, status, race, ethnicity, religion, caste, cultural practices, equal access, opportunity and treatment. Non-custodial measures shall be implemented without any discrimination.

■ Principle of right to privacy and confidentiality

Right to privacy and confidentiality of the children shall be protected by all means and through all the stages of the proceedings of care and protection processes.

■ Principle of last resort

Institutionalization of a child in conflict with law shall be the last resort after reasonable inquiry and that too for the minimum possible duration.

■  Principle of repatriation and restoration

Every child in the juvenile justice system shall have the right to be reunited with his family at the earliest and to be restored back to the same socio-economic and cultural status that the child enjoyed before coming under the purview of this Act unless such restoration and repatriation is not in his best interest.

■ Principle of fresh start:-

All past records of any child under the Juvenile Justice system should be erased except in special circumstances for a fresh start of life.

■ Principle of diversion:-

Measures for dealing with children in conflict with law without resorting to judicial proceedings shall be promoted unless it is in the best interest of the child or the society as a whole.

■ Principles of natural justice:-

Basic procedural standards of fairness shall be adhered to, including the right to a fair hearing, rule against bias and the right to review, by all persons or bodies, acting in a Judicial capacity under this Act.

TOKYO RULES⁷⁴ON NON-CUSTODIAL MEASURES

United Nations General Assembly adopted the United Nations Standard Minimum Rules for Non-Custodial  Measures   (Tokyo  Rules)   on   14^th  December   1990  without  a vote.
 The international regulation speaks about the non-custodial measures as an alternative remedy to imprisonment.

Fundamental aims underlined in general principles are mentioned in Rule 1 of the Tokyo Rules. The present Standard Minimum Rules provide a set of basic principles to promote the use of non-custodial measures, as well as minimum safeguards for persons subject to the alternatives to imprisonment.⁷⁵ It promotes greater community involvement, a sense of responsibility towards the society ⁷⁶ and reduction of imprisonment to rationalize criminal justice policies.⁷⁷

The Scope of non-custodial measures is underlined in Rule 2 of Tokyo Rules. Wide ranges of non-custodial measures are used from pre-trial to post sentencing dispositions⁷⁸ without any discrimination⁷⁹ with minimal intervention⁸⁰ to provide greater flexibility consistent with the nature and gravity of the offence, with the personality and background of the wrong doer. The development of new non-custodial measures should be encouraged and closely monitored and its usage should be systematically evaluated.⁸¹ Formal proceedings should be avoided as far as possible,⁸² as part of the movement towards de-penalization and decriminalization⁸³ instead of interfering with or delaying efforts of reformation.

The selection of a non-custodial measure shall be based on an assessment of established criteria in respect of both the nature and gravity of the offence and the personality, the background of an offender, the purposes of sentencing and the rights of victims⁸⁴ with the discretionary power vested in the Judiciary or other competent authority⁸⁵ in compliance with internationally recognized human rights.⁸⁶ Non-custodial measures shall not involve medical or psychological experimentation on, or undue risk of physical or mental injury to, the wrongdoer.⁸⁷ The wrong doer’s right to privacy⁸⁸ and dignity⁸⁹ shall be respected, as shall be the right to privacy of the offender’s family. The wrongdoer’s personal records shall be kept strictly confidential and closed to third parties.⁹⁰ The Tokyo Rules mentions pre and post-trial stages and sentencing. It gives the guidelines which can be adopted for non-custodial measures.

Sentencing options or non-custodial measures are mentioned in Rule 8.2 of the Tokyo Rules. It states that sentencing authorities may dispose of the cases in the following ways:

(a) Verbal sanctions, such as admonition, reprimand and warning;

(b) Conditional discharge;

(c) Status penalties;

(d) Economic sanctions and monetary penalties, such as fines and day-fines;

(e) Confiscation or an expropriation order;

(f)   Restitution to the victim or a compensation order;

(g) Suspended or deferred sentence;

(h)  Probation and judicial supervision;

(i)   A community service order;

(j)    Referral to an attendance centre;

(k)  House arrest;

(l)   Any other mode of non-institutional treatment;

(m)  Some combination of the measures listed above.

Treatment Process for non-custodial measures:-

As far as the “treatment process”⁹¹ of non-custodial measures is concerned, it includes various schemes such as case-work, group therapy, residential programmes and the specialized treatment of various categories of wrongdoer⁹², conducted by trained professionals with practical experience, to meet the needs of wrongdoers more effectively.⁹³ When it is decided that treatment is necessary, efforts should be made to understand the wrong doer’s background, personality, aptitude, intelligence, values and, especially, the circumstances leading to the commission of the offence.⁹⁴ Case record of each wrongdoer shall be maintained by the competent authority.⁹⁵

The Tokyo Rules should go hand in hand with the UNCRC for getting better results in the cases of Child in Conflict with Law.

COMPARATIVE  ANALYSIS

United States

United States of America is prescribing punishments for children with complex political jurisdictions. The child offender may be apprehended by a community agency like school authorities, but, in most cases, the child in conflict with law will be apprehended by the police. In other words, police involvement is usually in response to a specific complaint against a child. Child in conflict with law can be transferred to a social agency for treatment, unconditionally released, or released on certain conditions (for e.g. Courts have a diversion program whereby first offenders can be released if the child and his family agree to comply with certain conditions to be fulfilled during a definite period to time with supervision, restitution,
family counselling, improvement of school attendance, improved school performance, marriage counselling, periodic visit to the intake service, and involvement in ancillary services
available to the Juvenile court.

The police officer may serve as a problem resolver between the complaining party, the child and his/her parents. If the problem is resolved then the disposition of the complaint becomes informal. But, the police will usually make a written report of the incident. Informal disposition is usually an alternative when less serious offences are involved.

However, the non-judicial resolution is more likely to occur in the field. In the Police Juvenile Unit, the juvenile is assigned to a juvenile officer. The juvenile officer disposes of the case by selecting one of the following options: (1) release to parents with official reprimand; (2) release with official report of the field interrogation; (3) release to some other juvenile agency; (4) refer to juvenile court without detention; or (5) refer to juvenile court with detention⁹⁶

Orman W.Kelchan has pointed out that “the juvenile justice Standards are a major reformulation of American Juvenile Court philosophy. They propose a much narrower, more precise jurisdiction… The expansive, elusive, and sentimental theory of parens patriae, under which all judicial action is presumed to be in the best interests of the child, has been under increasing challenge in America for two decades.⁹⁷” Fresh Start principle is the method adopted in the case of child in conflict with law.⁹⁸

  Philadelphia

Terence. P. Thornberry in his Article on “Sentencing Disparities in Juvenile Justice System”⁹⁹stated four basic final dispositions that a child in conflict with law could receive in Philadelphia. He is also stating that “In ascending order of severity they are: a) Remedial Arrest-cases in which the child in conflict with law is detained by the police until his parents or legal guardians are notified and an official record of the contact address is entered in the police files. The case, however, is not referred to the Juvenile Court¹⁰⁰. Adjusted-cases are dismissed by an intake hearing officer or Juvenile Court Judge, without the use of probation¹⁰¹. Probation-casesin which a Juvenile Court Judge sentences the individual to probation or to pay a fine or make restitution to the victim¹⁰² and Institutionalization-cases in which a Juvenile Court Judge sentences the individual to a correctional institution¹⁰³.

England

In England the system follows the Children and Young Persons Act, 1969 and It says that the juvenile offenders should be dealt with outside Courts. The proceedings got the protective nature specifically called as ‘care proceedings’. Care proceedings became an alternative for the children aged fourteen and seventeen. The Act gives more emphasis on the informal non-judicial disposals. The Court proceedings should be viewed as the last resort to be relied on.

As per the Act, a) Criminal prosecutions other than for homicide would no longer be brought against those under fourteen, b) Criminal offences committed by youths under fourteen could provide grounds for taking care proceedings, but it would be necessary to provide that the child was in need of care and control which he or she would be unlikely to receive unless the court made an order and c) Criminal charges against those over fourteen would no longer be brought unless the prosecutor considered non-criminal response inappropriate, had sought views of a statutory welfare agency, and could satisfy the Court that a prosecution was necessary.

South Africa

Children in conflict with law who are detained by the police may be released without bail, especially if the offence is of non-serious nature and the child’s parents can be traced. Juvenile justice in South Africa is ‘legalistic and formal’ in character. Juveniles are charged under the criminal law, in fact, the maximum age of ‘criminal non-responsibility’ in South Africa is seven years old. A child over seven may be brought to trial in a criminal court. Most juvenile offences are less serious, and these less serious cases are tried in an inferior magistrate’s court i.e., Juvenile Court. Delinquent cases are kept separate from the neglected, dependent and abused cases, and the uncontrollable or incorrigible child is dealt with in the children’s court as a child in need of care.

Several different sentences are available to the magistrate: (1) caution or reprimand, (2) the imposition of a suspended or postponed sentence, (3) the release of the offender to the supervision of a probation officer or to the custody of a specified person, (4) the imposition of a fine, (5) the imposition of a whipping (beating) and (6) committal to reform school and finally imprisonment. Fines are often imposed as an alternative to imprisonment.

NON-CUSTODIAL  MEASURES-MERITS  AND  DEMERITS

Devdatta Mukherjee¹⁰⁴ in an article specifically pointed out the reason behind the non-custodial measures and other special treatments to the children that ‘prescribing different treatment for child offenders is an offshoot of the new penology, which came to be applied with the realization that courts, procedures and prisons meant for adult offenders could hardly be expected to serve the interests of child offenders.’

Article 37 of the UNCRC also prescribes modes of treatment of children in conflict with law. As per Article 37, State parties shall ensure that a) No child shall be subjected to torture or other cruel, inhuman or degrading treatment or punishment. Neither capital punishment nor life imprisonment without possibility of release shall be imposed for offences committed by persons below eighteen years of age. b) No child shall be deprived of his or her liberty unlawfully or arbitrarily. The arrest, detention or imprisonment of a child shall be in conformity with the law and shall be used only as a measure of last resort and for the shortest appropriate period of time. c) Every child deprived of liberty shall be treated with humanity and respect for the inherent dignity of the human person, and in a manner which takes into account the needs of persons of his or her age. In particular, every child deprived of liberty shall be separated from adults unless it is considered in the child’s best interest not to do so and shall have the right to maintain contact with his or her family through correspondence and visits, save in exceptional circumstances. d) Every child deprived of his or her liberty shall have the right to prompt access to legal and other appropriate assistance, as well as the right to challenge the legality of the deprivation of his or her liberty before a Court or other competent, independent and impartial authority and to a prompt decision on any such action. Every country which ratified the Convention is bound to follow principles in the interest of justice and also for the well being of the children.

Merits

i.    Children get more time to explore. They are not caged.

ii.   They can avoid social stigmatization in a better manner with the help of group counselling and other non-custodial techniques.

iii.  They will get an opportunity to go back to their own home.

iv.  Effective restoration

v.   Best interest of the child can be protected.

vi.  Child-friendly approach becomes a reality.

vii.Better life and situations

Beijing Rules provide that “Detention pending trial shall be used only as a measure of last resort and for the shortest possible period of time” and “whenever possible, detention pending trial shall be replaced by alternative measures, such as close supervision, intensive care or placement with a family or in an educational setting or home.”

Unnecessary detention will cause more harm than protection. In the case of adult offenders, punishment is prescribed for intentionally committed offences. Law needs to be more informal towards the children who commit offence due to their circumstances. The State is having an obligation to cater their basic needs by adopting an attitude conducive to proper adjudication and disposition of the matters.¹⁰⁵ Non-custodial measures are the more effective tool for healing the child in conflict with Law and also help to avoid castigation.

Demerits

i.    The Non-custodial measure is a misnomer.

ii.   If the probation officer is unable to get the sponsorship in time that will directly affect the future of the child in conflict with law.

iii.  Law is not prescribing any methods for effective training to implement the non-custodial measures.

iv.  T.D.Campbell has pointed out that “Punishment remains punishment whether or not the punishing agency refuses to call it such¹⁰⁶”. Whether the system is adopting non-custodial or custodial measures, it doesn’t matter at all. For the receiver, it is a punishment.

CONCLUSION

“Children need love, especially when they do not deserve it.”

                                                                                 - Harold.S.Hubert¹⁰⁷

A child is an asset to the nation, future of the world, aspiration of their parents and inspiration for the future generation. So destroying the lives of children with heinous punishments is shoddier than any other malady. The legal system in its entirety should realize the full potential of children in conflict with law through proper education and training to enhance their ability to think reasonably, fairly and equitably. They should get opportunities to change themselves into good human beings with self-respect, dignity, self-confidence, truthfulness and respect towards the society.

The Juvenile Justice system had its own drawbacks. The conditions inside most of the homes are shoddier than prisons with more standard facilities. Some of the institutions are in very pathetic condition without proper doors or facilities to accommodate them. The regulations are not fully followed in the institutionalized methods. Institutions in Kerala are not an exception to this. Girls under the institution are facing various ill-treatments. There are instances recorded where the probation officer himself raped the girl child. There are a plethora of cases, where the children run away from these institutionalized methods.

Non-custodial measures, on the other hand, depend on various elements. Their own
family is not a safe place for most of the children in conflict with law. Non-custodial measures lack proper follow-ups. In one instance, ‘a child was sent to foster care when a foster parent approached the officials. After a few months, authorities found that the foster parents are not able to feed the child due to their financial constraints. Hence, their plea to adoption got rejected. Till that time, the story was so clear and it was based on the written rules and regulations. But, the crisis occurred when the child reacted very violently. He was so amazed by the fact that he got a new family, even though they were not his actual parents. When the same system which gave him the parents asked him to come back then his condition became poorer than before. He grew pale, in a panic of expectation, when he remained again in his solitude. He was reluctant to return to the institution.

Adoption is very huge and cumbersome process and most of the time genuine people will be ignored. The children in conflict with law are the main targeted group for human trafficking. Eagles are always waiting in front of their nests to grab them into unscrupulous conditions.

Adoption, Children in conflict with Law and Children in need of care and protection are three different phenomena, thus need meticulous attention specifically with separate legislation. There is no criterion for the age of innocence. The act retains a high degree of dependence on adult criminal justice agencies like police, Magistrate and also on other procedures. Disabled children are in need of special care and attention which is not provided by the system. Institutions under the System are no longer safer for children due to external pressure. Moreover, Speedy Trial is a misnomer. In Krishna Bhagwan v. State of Bihar¹⁰⁸the High Court stated that the various provisions of the Children Act and the Juvenile Justice Act showed that extraordinary procedure has been prescribed for enquiring into offences committed by a child. The basic approach is curative and reformative, not punitive.

 

In a civilized society, the importance of Child Welfare can be overemphasized for the welfare of the entire community, its growth and development. A child is a ‘national asset’ and the nation is responsible for taking proper measures for their well being.

 

Foot Note:

1.  Section 2(13) of the Juvenile Justice (Care and Protection of Children) Act, 2015 & Section 2 (l) of the Juvenile Justice (Care and Protection of Children) Act, 2000. According to Black’s Law Dictionary, ‘Juvenile’ means a person who has not reached the age at which one should be treated as an adult by the Criminal Justice System. And juvenile delinquency means anti-social behavior by a minor; especially behavior that would be criminally punished if the actor were an adult, but instead is usually punished by special laws pertaining only to minors. Such juvenile delinquent who are minors and guilty of criminal behavior, are punished by special laws not pertaining to adult. They are also termed as juvenile offender or a delinquent minor.”

 

2.  Madras Children Act 1920, Bombay Children Act 1924 etc.

 

3.  Section 2 (e) of the Juvenile Justice Act, 1986.

4.  Section 2 (l) of the Juvenile Justice (Care and Protection of Children) Act, 2000.

5.  Section 2 (13) of the Juvenile Justice (Care and Protection of Children) Act, 2015.

6.  The terms ‘Juvenile’ and ‘Juvenile Justice’ was used for the first time in UN Standard Minimum Rules for the Administration of Juvenile Justice adopted by General Assembly on 29.11.1985. M.S. Sabnis pointed out the reasons for the change in the terminology i.e. i) to denote that Juvenile offenders need to be treated differently from adult offenders due to the special problems child is constrained to face in traditional adult-oriented Criminal Justice System and 2) At the same time to caution against pure welfare method that denies a child due process and the basic legal safeguards.

7.  Please refer Section 15 and Section 18 (3) of the Juvenile Justice (Care and Protection of Children) Act, 2015.

8.  In Nuvvala Kiran v. State,2004 Cri LJ 1263, juvenile aged 17 years had committed rape and the Court held that he could not be termed as juvenile and as such not entitled to the benefit under the Act. In Kali Prasad Patwa v. State of Uttar Pradesh(2002 (44) ACC 840), Court held that the crucial date to determine whether the accused was a Juvenile or not, was the date on which offence was committed.

9.  Suman Nalwa and Hari Dev Kohli, “ Commentary on the Juvenile Justice Act”, Universal Law Publishing Co. Pvt. Ltd., New Delhi (1st Edn., 2011).

10. Karamdeep Singh v. State of U.P.(2002 (44) ACC 83 : 2002 Cri LJ 1242(All.).

11. 2004 (14) AIC 952 (Raj.).

12.   R.P. Kataria and S.K.A.Naqui, (Ed.), “ R.N.Choudhary’s Law Relating to Juvenile Justice in India”, Orient Publishing Co., New Delhi, (2nd Edn., 2007).

13.  The Juvenile Justice (Care and Protection of Children) Act, 2015.

14.  Section 23 of the Juvenile Justice (Care and Protection of Children) Act, 2015 states that “….there shall be no joint proceedings of a child alleged to be in conflict with law, with a person who is not a child.”

15.  S.K.A.Naqvi “Jaisi” and Sharat Tripathi (Revised), “ R.N. Choudhry’s Law relating to Juvenile Justice in India”- being commentary on the Act, 2000 as amended by the Act No. 33 of 2006 along with Central & State Rules, Orient Publishing Company, New Delhi, (3rd Edn., 2009).

16.  Ibid.

17. Section 22 of the Juvenile Justice (Care and Protection of Children) Act, 2015

18.  AIR 1984 SC 237; Bhola Bhagat v. State of Bihar, AIR 1998 SC 236.

19.  Asutosh Mookherjee, “Juvenile Justice”, S.C.Sarkar, Calcutta (1st Edn. 1989).

20.  Asha Bajpai, “Child Rights in India”, Oxford University Press, New Delhi, (2nd Edn. 2006).

21.  Preamble of the 2015 Act says as follows: “An Act to consolidate and amend the law relating to children alleged and found to be in conflict with law and children in need of care and protection by catering to their basic needs through proper care, protection, development, treatment, social re-integration, by adopting a child-friendly approach in the adjudication and disposal of matters in the best interest of children and for their rehabilitation through processes provided, and institutions and bodies established, herein under and for matters connected therewith or incidental thereto.”

22.  Section 18 (1)(a) of the Juvenile Justice (Care and Protection of Children) Act, 2015.

23.  Section 18 (1)(a) of the Juvenile Justice (Care and Protection of Children) Act, 2015.

24.  Section 18 (1)(b) of the Juvenile Justice (Care and Protection of Children) Act, 2015.

25.  Section 18 (1)(c) of the Juvenile Justice (Care and Protection of Children) Act, 2015.

26.  Section 18 (1)(d) of the Juvenile Justice (Care and Protection of Children) Act, 2015.

27.  Section 18 (1)(e) of the Juvenile Justice (Care and Protection of Children) Act, 2015.

28.  Section 18 (1)(e) of the Juvenile Justice (Care and Protection of Children) Act, 2015.

29.  Section 18 (1)(f) of the Juvenile Justice (Care and Protection of Children) Act, 2015.

30.  Sections 39(4) and 46 of the Juvenile Justice (Care and Protection of Children) Act, 2015.

31.  Section 43 of the Juvenile Justice (Care and Protection of Children) Act, 2015.

32.  Supra n.16.

33.  Paripurnanand Varma, Pathology of Crime and Delinquency, Sahitya Bhavan, Agra, (1st Edn., 1972).

34.  Legal Practitioner in Mumbai observed this after visiting Mumbai Central Prison and Observation Home.

35.  Supra n.17.

36.  Supra n.18.

37.  AIR 1997 SC 699

38.  Supra n.19

39.  See http: file:///C:/Users/user/Desktop/english%20model%20rule.pdf.

40.  Kadoma Declaration on Community Service and recommendations of the seminar entitled “Criminal justice: the challenge of prison overcrowding”, held in San José from 3 to 7 February 1997.

41.  Kambala Declaration on Prison Conditions in Africa, adopted at the International Seminar on Prison Conditions in Africa, held at Kampala from 19 to 21 September 1996.

42.  AIR 1998 SC 236.

43.  Supra n. 20.

44.  Section 18(1)(e) of the Juvenile Justice (Care and Protection of Children) Act, 2015.

45.  Section 12 (1).

46.  MANU/UP/0267/1992.

47.  Section 12(4).

48.  Crl. M.P. No. 853 of 2013 in Criminal Appeal No. 811 of 2011, Decided On: 19.09.2013, MANU/SC/0964/2013.

49.  Section 18(1)(e) of the Juvenile Justice (Care and Protection of Children) Act, 2015.

50.  1992 Cri. LJ 1906.

51.  Rule 28 of the latest Rules.

52.  Section 18(1)(f) of the Juvenile Justice (Care and Protection of Children) Act, 2015.

53.  Section 45.

54.  Chapter VII of the Juvenile Justice (Care and Protection of Children) Act, 2015 specifically dealt with Reha-bilitation and Social Reintegration.

55.  Section 39 of the Juvenile Justice (Care and Protection of Children) Act, 2015.

56.  K.N.Chandrasekharan Pillai, R.V.Kelkar’s Lectures on Criminal Procedure, Eastern Book Company, Lucknow (4th Edn., Reprint 2007).

57.  “Eight Juveniles escape from Observation home; One traced”, http://www.thehindu.com/news/cities/bangalore/eight-juveniles-escape-from-observation-home-onetraced/article21262206.ece, Accessed on 27.04.2018

58.  Bharat Khanna, “9 Juveniles escape from observation home in Ambala”, https://timesofindia.indiatimes.com/city/chandigarh/9-juveniles-escape-from-observation-home-inambala/articleshow/62877183.cms., Accessed on 27.04.2018.

59.  Abdul Latheef Naha, “Five children escape from Tavanur observation home”, http://www.thehindu.com/todayspaper/tp-national/tp-kerala/five-children-escape-from-tavanur-observation-home/article6325092.ece, Accessed on 27.04.2018.

60.  First hand information gathered in the year 2012. See Adv. Sandhya Raju (Ed.), ‘A study of Homes under Juvenile Justice System in Kerala’, Human Rights Law Network, Kochi.

61.  Adoption shall be resorted to for ensuring right to family for the orphan, abandoned and surrendered children. The Act also prescribes the eligibility of prospective adoptive parents. Chapter VIII of the 2015 Act deals with the norms of adoption.

62.  Foster care is an alternate care in the domestic environment of a family other than the biological one and such families have been selected, qualified, approved and supervised [Section 2(29)]. Section 44 of the 2015 Act prescribes foster care.

63.  Open shelter function as a community based facility for children in need of residential support for short term basis (Section 43 of the 2015 Act). It is an urgent drop-in center for the children who need necessary support.

64.  (2004).

65.  1992 JIC 325 (SC)).

66.  1994 JIC 214(All.).

67.  Dr. Mamta Rao, Law relating to Women & Children, Eastern Book Company, Lucknow ( 2nd Edn., 2008).

68.  (1982) 2 SCC 202.

69.  (2005) 3 SCC 551.

70.  In Umesh Singh v. State of Bihar(AIR 2000 SC 2111), where the issue of age of juvenile was not raised before the trial Court but in appeal before the Supreme Court, in view of the accused having been found to be juvenile, sentence of the accused was set aside.

71.  AIR 1977 SC 1926.

72.  Charles Barton, “Empowerment and Retribution in Criminal and Restorative Justice”, http://www.voma.org/docs/barton_emp&re.pdf, visited on 21.04.2018, 3 P.M.

73.  Section 3.

74.  UNITED NATIONS STANDARD MINIMUM RULES FOR NON-CUSTODIAL MEASURES, General Assembly resolution 45/110, annex.

75.  Rule 1.1 of the United Nations Standard Minimum Rules for Non-custodial Measures.

76.  Rule 1.2 of the Tokyo Rules.

77.  Rule 1.5 of the Tokyo Rules.

78.  Rule 2.3 of the Tokyo Rules.

79.  Rule 2.2 of the Tokyo Rules.

80.  Rule 2.6 of the Tokyo Rules.

81.  Rule 2.4 of the Tokyo Rules.

82.  Rule 2.5 of the Tokyo Rules.

83.  Rule 2.7 of the Tokyo Rules.

84.  Rule3.2 of the Tokyo Rules.

85.  Rule 3.3 of the Tokyo Rules.

86.  Rule 3.7 of the Tokyo Rules.

87.  Rule 3.8 of the Tokyo Rules.

88.  Rule 3.11 of the Tokyo Rules.

89.  Rule 3.9 of the Tokyo Rules.

90.  Rule 3.12 of the Tokyo Rules.

91.  Rule 13 of the Tokyo Rules.

92.  Rule 13.1 of the Tokyo Rules.

93.  Rule 13.2 of the Tokyo Rules.

94.  Rule 13.3 of the Tokyo Rules.

95.  Rule 3.6 of the Tokyo Rules.

96.  Kansas Standards and Goals for Juvenile Justice, 1975.

97.  Orman W. Ketcham , “National Standards for Juvenile Justice”, Virginia Law Review, Vol.63, No. 2 (Mar., 1977), pp. 201-219, http://www.jstor.org/stable/1072387 .

98.  Robert O. Dawson, “The Future of Juvenile Justice: Is It Time to Abolish the System?”, The Journal of Criminal Law and Criminology (1973-), Vol. 81, No. 1 (Spring, 1990),pp. 136-155, http://www.jstor.org/stable/1143781.Accessed: 11/09/2013 07:24.

99.  Terence P. Thornberry, “Sentencing Disparities in the Juvenile Justice System, The Journal of Criminal Law and Criminology (1973-), Vol. 70, No. 2 (Summer, 1979),http://www.jstor.org/stable/1142919 .

100. The disposition in 6,515 out of 9,601 cases.

101. 1,338 cases.

102. 1,094 cases.

103. 654 cases.

104. Devdatta Mukherjee, “Juvenile Justice System In India: Do We Really Care?”, http://www.manupatrafast.com/articles/Articles.aspx?sub=Jurisprudence.

105. Pratab Singh v. State of Jharkand(2005) 3 SCC 551; Arnit Das v. State of Bihar(2000) 5 SCC 488.

106. T.D.Campbell, “Punishment in Juvenile Justice”, British Journal of Law and Society, Vol. 4, No. 1 (Summer, 1977), pp.77-86, http://www.jstor.org/stable/1409737, Accessed: 11.09.2013 07:35.

107Child psychiatrist.

108. AIR 1989 Patna 217.

Fiat Justicia Ruat Caelum

(By Parvathi Sanjay, Advocate,High Court of Kerala)

 

• A bright sunny morning in the small village town, Badagara of North Malabar in the year 1959 – the venue is the main road and the time is 10.30 am. The Munsiff, Badagara¹  is on his way to the court (colloquially referred to as the ‘kachery’). He has the Daffaedar escorting him holding an umbrella for him and the peon in tow holding a metal box containing the files of the day. As the Munsiff walks from his residence to the court (those days judicial officers did not have official cars allotted and the few who had own vehicles hardly used to drive them if they resided close to court), the local people including the vendors and their customers on either side of the roads stood up in unison with folded hands as the Munsiff passed.  People on the road, irrespective of their caste, sex or religion gave way to the officer  removing their turbans or unfolding their raised dhotis as a mark of respect. Such was the awe and respect for the judiciary!  A request – instead of viewing the above as a reflection of the then prevalent feudalistic attitude, kindly realise that  this was the kind of respect and awe which the judiciary commanded from the  masses irrespective of the individual who held/presided over the post.  ‘The Munsiff’ was their God-sent, dispenser of Justice.- The above scene came to my mind after a long thought sparked as I alighted  from an online taxi at my office after court when the driver, seeing that I was a lawyer due to my attire, anxiously asked “Madam, what is happening in the courts and to our legal system now a days?”. His query in the vernacular, as I collected the balance money, forced a smile on my face and said - “Nothing...All is well”. It took me back to the yesteryears when I grew up in an environment and a society that held judiciary in such high esteem and made me realise that the common man still has the awe for the legal system but is perturbed and disturbed by the happenings around.

 •Dispensing justice is a divine duty. To be considered to be fit and eligible to do this duty is perhaps a privilege that only a few among us can claim. Once elevated to the post of a judicial officer, be it in the subordinate judiciary or the higher judiciary, the officer has to train his mind and soul along with his legal acumen to become a complete judge. Honesty, sincerity, commitment and spiritual stamina (not religious – being spiritual is of a different order on a higher plane since the power can either be a grace from the Providence or an insight in one’s conscience according to one’s beliefs and upbringing) will essentially guide a good judge throughout his career.  A good judge apparently gets vibes both positive and negative while hearing cases which helps him decide fairly. That is the result of a blessed inner power that makes this job unique, pure and divine.

•This being the age old concept of judges and judiciary, we are now in an era where we as a fraternity (the Bar and the Bench) are questioned by the public about our  integrity, credibility, veracity and reliability. India being a democratic country with a Constitution as
its guide, could always claim an independent judiciary to its credit. Rule of Law is our hallmark. The method and manner in which judicial officers are selected and appointed kept changing over a period according to the necessities, pulse and politics of the nation and the society. Any system has its merits and demerits. Every system may initially function well but can face wear and tear over the years. That again is a law of nature and there is nothing unusual about it. It is for the fraternity to which we belong to, to address the issues with grace and utmost sobriety so that our problems and differences of opinion are  ironed out, handled and repaired by the experts and the experienced among ourselves in the most subtle manner. Let positive criticism act as a catalyst to have an introspection of the working of the system of which we are all a part and parcel. This will help us to take corrective measures and the cleansing process will be smooth and effective. We cannot afford to become a laughing stock.

• Judiciary has a commendable heritage and tradition and we should be proud that we all form part of this noble profession. For the common man, judiciary is still their last hope and resort and they rely on the legal system for a balanced and impartial redressal of their legal grievances. This fact should make us all responsible to work and strive with dignity for the realisation of this philosophical motto, ‘Let justice be done though the heavens fall’ which denotes that justice should be carried out regardless of the situation or consequences. Friends, let us abide by the science of law and be the torch bearers of a rich legacy left behind by our revered ancestors and thus become guardians of the legal system of this great nation.

 

Jai Hind!

Compelling Family Responsibility: A Good Cause?

(By Simi John, Asst. Professor, Bharata Mata School of Legal Studies, Aluva)

 

The lives of Indian women have undergone significant changes since 1990s when compared to their situation in the past. Women empowerment campaigns and legislative actions in this regard have improved the situation of women leading to financial independency and emancipation of her fundamental freedoms. The vital aspects of her privacy including autonomy, dignity and bodily integrity assumed much importance and this has inevitably led to considerable changes in the child bearing pattern also. Despite all these positive changes, the societal attitude towards the job profile of women in the household has not undergone much reformation. The traditional view still holds ground that she is the one who has to do all chores, bring up children, provide for all and being a working woman is no exemption. She is the central axis around which the whole family revolves. Of all roles she plays, the one as a mother is the most vital one not just because she gives birth but more because of the process of nurturance¹ she undertakes. Except for maternity leave, law offers no recognition to this ‘work’ of women. Unable to prioritize her career needs against her family responsibilities, most of the women either quit from their hard earned and much craved for professions or settle for something small wherein she need not compromise her family requirements. The prime question is whether motherhood can be limited to three or six months of time? Should she be handicapped from achieving heights in her career or even from exercising the fundamental right to work because of her role as a mother? The paper attempts to analyze the reasons why women back out from their career prospects and probes whether compelling family responsibilities can be a good cause to avail leave from the organization where she works.

 

It is often seen in the Indian context that career development of a woman almost ends with her marriage. The societal norms warrants an early pregnancy and she can avail no leave from her duties as a wife, daughter-in-law and most importantly from her role as a mother. The life situations in which she is placed many times renders her helpless and she finds herself in a dilemma not knowing whether to opt family or job. Men do not face such critical decisional crisis much, because the nature of  institutional work is designed in such a way that it suits men more than women and also as it is accepted that woman has to play the role of a shock absorber in the family and mould herself accordingly. The saddest part is that none of the laws in India addresses this family responsibility which compels her to leave her job as a good cause to lawfully avail leave. A country which considers family as the bedrock of society offers no protection to the entity which holds and protects the family even at the cost of her dreams and passions.

 

We have a plethora of international documents protecting family, motherhood and childhood amongst which Article 16(3) of the UDHR reads as follows:

“The family is the natural and fundamental group unit of society and is entitled to protection by society and state.”

 

Other international documents also tender recognition to family, marriage and mother-hood in similar terms². Article 10 of the ICESCR, 1966, requires state parties to accord special protection to mothers during a reasonable period before and after childbirth. The Convention on the Elimination of All Forms of Discrimination Against Women, 1979 (CEDAW) views discrimination against women as any sort of difference, exclusion or limitation made on the basis of sex which may harm or invalidate the recognition, enjoyment or exercise of human rights and fundamental freedoms of women in the political, economic, social, cultural, civil or any other field³. The convention also recognizes the inalienable right to work and right to same employment opportunities of both men and women⁴.

 

 None of these international documents specifically acknowledge another period of time which may necessitate woman to quit her job because of the compulsion of her family responsibilities. The reason why law should take note of this plight of women is because as far as India is concerned, this responsibility is mostly programmed for her. The triple role as a mother, wife and daughter/daughter-in-law qualifies her to solely shoulder instances where one of the family members is terminally ill or differently abled. Though changes have come, still our patriarchal system is more inclined to accept and appreciate a situation where a woman sacrifices her career for family rather than men doing the same. In such a scenario, working women are in need of a supplementary scheme which gives them the benefit of taking additional leave for a reasonable period of time to address such compelling family circumstances without having to renounce the hard earned job. Acknowledging such a need of the women folk would contribute much to the female labour force participation. Governmental institutions have provisions for emergency leave and leave without allowance (subject to approval) and also the Central Civil Services(Leave) Rules, 1972⁵  contain provisions to grant  leave to a woman Government servant as ‘child care leave’ for a maximum period of two years for taking care of up to two children. But the same is not the position as far as non-governmental institutions are concerned.  They are left with no option than to quit the job when confronted with a critical family crisis. There is no alternative available than to do away with her ambitions and the much sought after results of burning the night candles!

 

In Mini.K.T. v. Senior Divisional Manager (Disciplinary Authority), Life Insurance Corporation of India⁶, the question considered by the Hon’ble High Court of Kerala was whether a State or its instrumentality as an employer can discriminate a woman employee based on compelling family care giving responsibility? In this case a woman was thrown out from service on account of continuous leave she had taken to care for her differently abled child. She had taken extended leave because she was forced to be at Bahrain where she could provide the best treatment to her child. Here the court, acknowledging the absence of a protective legislation in this regard, held that the legality of disciplinary proceedings should be assessed on a broader canvass of fundamental rights in the light of principles of family responsibility developed through international conventions and should not be limited to the rules and regulations of the concerned organization. The court emphasized that no service regulations can stand in the way of a woman claiming protection of her fundamental right of dignity as a mother. The court considered motherhood not as an excuse in employment but as a right which demands protection in given circumstances⁷. For a mother her child is her first priority and that should not be a reason to initiate disciplinary proceedings against her. Not only women but also men may encounter such life situations but such circumstances are more confronted by women when compared to their male counterparts. The court called for a gender neutral law which can help employees to be protected from discrimination based on family responsibility. All instances of family responsibilities cannot be enumerated. So the Legislature has to come up with a strategy which will enable employees to avail leave on account of compelling family responsibilities and which will compel the organizations to have room for such need of the employees. Such a law would be much welcome to the female employees and would also be a great step towards their emancipation and empowerment. A step towards this would be instrumental in protecting motherhood and the dignity, status and self respect of a mother and also the institution of family.

 

Foot Note:

1. Jasodhara Bagchi, “Interrogating Motherhood”, SAGE Publications India Pvt, Ltd., 2017.

2.  See Article 25(2) UDHR; Art. 23 ICCPR

3.  See Article 1, CEDAW.

4.  See Article 11, CEDAW. 

5. See Rule 43C).

6. 2018 (1) KLT 530 (W.P.(C) No.22007 of 2012(A)).

7. Ibid.      

An Erudite Judge Retires

(K.Ramakumar, Sr. Advocate, High Court of Kerala)

 

In the retirement of Sri.Justice Kemal Pasha, the High Court is losing an articulate and erudite Judge, the impact of which will be felt by everybody.  His presence was ubiquitous, active throughout, putting searching questions and reacting often very strongly on issues but not on individuals. No doubt he can be described as an outspoken Judge, but be it remembered outspoken Judges can be trusted more.

 

Sri. Justice Kemal Pasha threw up a large and lucrative practice to wear judicial mantle at a time when he was commanding extensive work throughout the District of Kollam. His was a traditionally typical case where a legal practitioner made a big sacrifice to take up the arduous, strenuous and stressful job of a Judge.  Soon it was found that as a Judge he excelled himself particularly in conducting criminal trials. One could perhaps point out that the punishments imposed by him were deterrent but deterrence is certainly one way of curbing and controlling crimes. As a Sessions Judge he acquired wide experience both in the Civil and Criminal branches of law.

 

In the High Court it was therefore, easy for him to assimilate constitutional issues and even election cases. His judgments are emphatic in exposition of law and fastidious on facts.

Sri.Justice Kemal Pasha was often outspoken outside the Court as well.  This inevitably had led to certain controversies as when a Judge speaks people listen with respect.

 

  Nevertheless, Sri. Justice Kemal Pasha was not reluctant even to speak on topics affecting religious practices which a more reticent Judge would have hesitated to speak out.  This, undoubtedly had also irked many, who did not agree with the Judge and had in turn evoked criticism.  One cannot however, miss his fearless expression of opinions on many topics of social importance and legal issues both in Court and outside the Court.

 

A remarkable thing that has to be mentioned about Sri.Justice Kemal Pasha is the respect with which he held members of the Bar. Legal practitioners appearing before him never went out of his court insulted or humiliated.  There was no shouting at, slighting or sarcastic comments. No pompous power display also. In fact large majority of the Lawyers in the High Court felt completely at ease when appearing in his court and to entangle themselves in legal quiddity, which was often enjoyable and delightful.  He held the Court with dazzling dignity and decorum and could achieve better results in the disposal of cases and administration of justice. To be sure even after demitting office, lawyers will never cold shoulder him, which they do to some.

 

The High Court is certainly becoming poorer by his absence. With his deep interest in law, legal principles and social justice, one hopes his talents will not go wasted.                                                

Beyond the Right to Privacy*

(By P. Chandrasekhar, Advocate, Ernakulam)

 

In Justice Puttaswamy v. Union of India(2017 (4) KLT 1 (SC) = (2017) 10 SCC 1)the Supreme Court has held that right to privacy is a fundamental right emanating from the Articles in Part III of the Constitution of India, including Article 21. The Supreme Court has thus elevated a common law right to the status of a fundamental right. The Court in this process relied on the decisions of Supreme Court of United States and the American concept of ‘Ordered Liberty’. Though Puttaswamyhas received wide welcome both within and without judiciary the normative foundation of the decision requires closer and deeper scrutiny.

 

The idea that right to privacy emanates from all fundamental rights in Part III of the Constitution of India including Article 21 has obviously been drawn from the American theory of “penumbra of the Constitution’ highlighted in Griswold v. Connecticut(381 US 479 (1965)) which does not appear to have any relevance in India. Its elucidation even in America is highly debatable and questionable. In Griswoldthe US Supreme Court struck down a Connecticut statute that proscribed use of contraceptive by married couple. The Court held that it was intrusion into the private family life of the people and violated their right to privacy. Though right to privacy has not been specifically mentioned in US Constitution, the Court held that right to privacy emanated from ‘penumbra’ of rights guaranteed by the Bill of Rights including 9th Amendment. 9th Amendment of US Constitution provides that ‘enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people’.  Justice Douglas pronounced the opinion of the Court inGriswold. Chief Justice Warren, Justices Goldberg, Brennan, Harlan and White agreed with his conclusion. Justice Douglas said that specific guarantees in the Bill of Rights have penumbras formed by emanations from those guarantees that gave them life and substance. He said that various guarantees created zones of privacy. According to Justice Douglas ‘we deal with a right of privacy older than the Bill of Rights, older than our political parties, older than our school system. Marriage is coming together for better or worse, hopefully enduring and intimate to the degree of being sacred. It is an association that promotes a way of life, not causes; a harmony in living, not political faith, a bilateral loyalty not commercial or social project’. It was obvious that Justice Douglas was not speaking about right to privacy as such as a normative concept but a particular descriptive privacy; marital privacy. Justice Goldberg held that concept of liberty embraced the right of marital privacy. He however struck a caution. Relying on the earlier decisions of US Supreme Court he said that ‘in determining which rights are fundamental, Judges are not left at large to decide cases in the light of their personal and private notions. He also said that ‘they must look to the traditions and collective conscience of our people to determine whether a principle is so rooted as to be ranked fundamental’. The enquiry, for him, was ‘whether a right involved is of such a character that it could not be denied without violating those fundamental rights of liberty which lie at the base of all our civil and political institutions’. Justice Warren and Justice Brennan concurred and joined the opinion of Justice Goldberg.  Justice Harlan though agreed with the final conclusion of the majority, did not join their opinion. He said that ‘incorporation approach’ is an unacceptable constitutional doctrine. For him the proper approach was constitutional enquiry as to whether the enactment violated basic values implicit in the concept of ‘ordered liberty’. Justice White, however, found the Connecticut law as applied to married couple deprived them of ‘liberty’ without due process of law as that concept is used in Fourth Amendment of the US Constitution. He held that it was settled by earlier opinions of the Court that Fourteenth Amendment included the right to marry, establish home and bring up children. Obviously, the ‘incorporation doctrine’ propounded by Justice Douglas did not find favour with any other Judge who agreed with the final conclusion reached by him.  Justices Black and  Stewart dissented and wrote separate opinions stating that there is nothing in US Constitution to say that Right to Privacy as such is a fundamental right, though they agreed that there are privacy rights such as ‘unreasonable search and seizure’ protected by the Fourth Amendment. They held that ‘privacy’ is a ‘broad, abstract and ambiguous concept which can easily be shrunken in meaning’.

 

It is clear that the formulation of Justice Douglas about right to privacy as a fundamental right emanating from the penumbra of the US Constitution based on ‘incorporation doctrine’ had no support from the other Judges of the Court. The history of the legal use of ‘penumbra’ metaphor could be traced to decision in Montgomerry v. Bevans(17 F.Cas.628 (9th C.C.D.Cal) (1871).   Burr Henly points out that Justice Holmes used that word to describe the ‘grey area where logic and principle falter’. Justice Hand expanded the meaning of the word to indicate the vague borders of words and concepts. According to Justice Cardozo ‘metaphor in law is to be narrowly watched, for starting out as a device to liberate thought it ends often enslaving it’ (Burr Henly: “Penumbra”: The Roots of a Legal Metaphor; 15 Hastings Constitutional Law Quarterly 81 (1987-1988)). However, Justice Douglas took a different approach. Rather than using it to high light the difficulty of drawing lines or determining the meaning of words or concepts he used the term to refer to a peripheral area of something specific.  Since Griswoldthe ‘penumbra doctrine’ is used to find implied rights that emanated from a specific rule extending its meaning to its periphery following the opinion of Douglas in Griswoldthough the other judges who decided Griswolddid not agree with that concept.

 

The view of Justice Douglas in Griswoldwas subject of severe criticism in America. Prof.David J.Garrow writes that Douglas was an intense private person. He was a thorough individualist. Prof.Steven Duke said that published opinions of Douglas ‘often read like rough drafts’. James Simon, his biographer, said that Douglas believed in theory of individual’s pre-legal rights. Donald Dworkin said that the fundamental individual rights propounded by Douglas were matters of his emotional biases rather than universal truth. Garrow quotes from Bruce Allen Murphy’s ‘Wild Bill’ and says that sexual escapades of Douglas were well known. He also says that ‘other justices also had mistresses’. This, of course, is not surprising having regard to the concept of liberty in American society. Garrow also adds that Justice Brennan had later complained about the slovenliness of Douglas’s writing. Reviewing “Wild Bill” Judge Richard Posner said that Douglas was ‘one of the most unwholesome figures in modern American political history’ and that ‘Murphy’s account of Douglas did not take in ‘Douglas’s flaw of character’. (See ‘The Tragedy of William O Douglas’; The Nation; March 27, 2003; April 14, 2003 issue). Robert P. George, writing in National Review said that Griswoldand subsequent opinions of the US Supreme Court based on Griswoldare widely praised in American Law Schools not because of their legal merits, but because it had comported with the ideology of ‘American Liberalism’. (See Robert P. George; The Bad Decision That Started It All; The National Review; July 8, 2005).

 

According to Prof.Melvin Urofsky criticism of Douglas can be divided into two categories. First, as a political judge he decided cases ‘according to his political views’. As a liberal he believed in right of privacy and stringent limits on Government intrusion. Second, he did not develop a coherent, acceptable legal analysis in his decisions so that scholars and other Judges could draw a useful pattern from his opinions. Urofsky quotes Edward White and says that ‘compelling personal themes of Douglas’s life have deep ramification for his professional life, especially his career as Supreme Court Justice’ (Melvin I Urofsky; “Douglas as a Common Law Judge”; Vol.41:133 Duke Law Journal)

 

In Justice Puttaswamythe Supreme Court has relied on the American concept of ‘Ordered Liberty” without explaining what that concept means for Indian society. The origin of ‘ordered liberty’ can be found in “The American Cause” by Russell Kirk.(Russell Kirk : The American Cause; edited with New Introduction by Gleaves Whitney; ISI Books; Willington, Delaware;2002). According to Kirk “Christian Civilization” or “Western Civilization” of which American civilization is a part consists of three cardinal ideas; the idea of justice, the idea of order and the idea of freedom. “Justice” is the principle and process by which each person is accorded things that are owned by that person – the things belong to the person’s nature. This principle protects person’s life, property, proven rights and dignity. The allegorical figure of justice always holds a sword. Justice is the corner stone of the world - divine justice and human justice. It is the first necessity of a decent society. “Order” is the principle and the process by which peace and harmony of society are maintained. It is the arrangement of rights and duties in a state to ensure that people will have just leaders, loyal citizens and public tranquility. It implies obedience of a nation to the laws of God and the obedience of individuals to just authority. Without order justice rarely can be enforced and freedom cannot be maintained. Freedom is the process by which a person is made master of that person’s life. It implies the right of all members of adult society to make their own choices in most matters. A free person is a person who has the right and the responsibility of deciding how that person is to live. There is no liberty without moral responsibility. Justice Cardozo’s majority opinion in Palk v. Connecticut(302 U.S. 319 (1937)) is considered to be the first judicial recognition of ‘ordered liberty’. Cardozo identified some constitutionally enumerated rights that were not the essence of a scheme of ‘ordered liberty’ and thus not incorporated in the Fourth Amendment. To abolish these rights is not to violate principle of justice so rooted in the traditions and conscience of the people. On the other hand, rights such as ‘freedom of thought and speech’ were of the essence of a scheme of ordered society. The core of ‘ordered liberty’ is the question whether the right is so rooted in the traditions and conscience of the people to be ranked as fundamental.

 

There was nothing to suggest that use of contraceptive by married couple was so deep rooted in the tradition and conscience of the people to rank the right to be fundamental. The view that right to use contraceptive by married couple was part of ‘ordered liberty’ protected by the Constitution was, therefore, not in accord with the long line of previous opinions of the Court. After Palko ‘deep root test’ became the basis of substantive due process standard used by the Courts to strike down enactment which violated ‘ordered liberty’. By passage of time substantive due process became the most controversial doctrine in constitutional law of America. Critics argued that when Judges struck down legislation on substantive due process grounds, they improperly imposed their own moral-political judgments without license from either the text of the constitution or its original understanding (See Tradition Based Substantive Due Process : John C Toro; New York University Journal of Law & Liberty; 2009, page 172). In Lochner v. New York (198 U.S. 45 (1905)), US Supreme Court struck down a New York statute limiting number of hours bakers could work per week. The majority held that the statute interfered with freedom of contract. Justice Holmes dissented and criticized the majority Judges for importing their liberal philosophy into due process clause. Lochner era was criticized for the opinions of unelected Judges who substituted their own values for those of popularly elected legislatures to protect rights that were not expressly stated in the Constitution. InFerguson v. Skrupa(372 U.S.726 (1963)) US Supreme Court reversed the trend. In Ferguson the Court proclaimed that ‘there was a time when the due process clause was used to strike down laws which were thought unreasonable, unwise and incompatible with some particular economic social philosophy and that ‘the doctrine had long since been discarded’. The assurance was short lived. Critics say that Lochner era came back when Griswoldwas pronounced. In Aestandadt v. Baird(405 US 438 (1972)) the Court extended Griswoldprinciple to unmarried couple permitting them to have access to contraceptive freely without intrusion of the Government. In Griswoldthe Court had ruled that criminalizing use of contraceptive by married couple had infringed their right to family life and therefore unconstitutional. However, in Aestandadtno right to privacy of family life of the couples was involved. Aestandadt was criticized for the reason that the court had termed premarital and extra marital sex as part of right to privacy.  In Roe v. Wade(410 US 113, 153 (1973)) the Court relied on Griswoldand held that pregnant women had unrestricted right to terminate pregnancy. However, in Bowers v. Hardwick(478 US 186 (1986)) the Court upheld constitutionality of Georgian law which criminalized homosexual acts. But in Romer v. Evans(517 US 620 (1996)) the Court invalidated amendment to Colorado’s Constitution that sought to foreclose any branch or political subdivision of the State from protecting persons against discrimination based on sexual orientation.  In 2003 the Court over ruled Bowers holding that laws making same sex intimacy a crime ‘demeaned the lives of homosexual persons’ (Lawrence v. Texas(539 US 558, 575 (2003)). In Romerthe court had applied ‘deep root’ test and held that ‘homosexual activity is not a right deeply rooted in the traditions and conscience of the people to be ranked fundamental right’. In Lawrence the Court relied on Griswold.  Justice Kennedy delivered the opinion of the Court. Justices Stevens, Souter, Ginsburg and Breyer joined the opinion of Justice Kennedy. Justice O’Connor who had concurred in Bowersdid not agree that Bowersshould be over ruled but concurred with the final conclusion of the majority. Justice Scalia filed a dissenting opinion. Justices Rehnquist and Thomas joined the dissent. O’Connor said that Lawrenceraised different issue than Bowers; whether under Equal Protection Clause moral disapproval is a legitimate state interest to justify by itself a statute that banned homosexual sodomy but not heterosexual sodomy. She used ‘rational basis theory’ to hold that the ban of homosexual sodomy was discriminatory. For her, moral disapproval of a group cannot be a legitimate governmental interest. Justice Scalia warned that application of an unheard form of rational basis theory will have far reaching implications beyond the case. He said that the Court untouched the central legal conclusion in Bowers. He said that ‘Respondent would have us announce a fundamental right to engage in homosexual sodomy. This we are quite unwilling to do”. He cited Washington v. Glucksberg(521 US 702,721 (1997)) which held that only fundamental rights which are ‘deeply rooted in this nation’s history and tradition’ qualify for anything other than rational basis scrutiny under the doctrine of ‘substantive due process’. He also pointed out that Texas State undeniably sought to further the belief of its citizens that certain forms of sexual behaviour are ‘immoral and unacceptable’. The same interest is furthered by criminal laws against fornication, adultery, adult incest, bestiality and obscenity’.

 

In James Obergefell v. Richard(576 US 14-556, 14-562, 14-571,14-574 (2015)) the Court held that persons marrying some one of the same sex are entitled to all lawful benefits on the same terms and conditions as marriages between persons of the opposite sex. The court held that same sex couples may exercise the right to marry and that they are entitled to all rights and benefits as are available to persons marrying opposite sex. The court relied on Lawrenceto come to the conclusion it reached. Justice Kennedy delivered the opinion of the Court. Justices Ginsburg, Breyer, Sotomayor and Kagan joined. Chief Justice Roberts filed a dissenting opinion. Justices Scalia and Thomas joined the dissent. Robert said that ‘the court is not a legislature. Whether same sex marriage is a good idea should be of no concern of the Court. Under the Constitution Judges have power to say what the law is and not what the law should be. The fundamental right to marry does not include the right to make a statute change its definition of marriage. People of a State are free to expand marriage to include same sex couple or retain the historic definition.’ In Obergefell,however, the court took an extraordinary step of ordering every state to license and recognize same sex marriage. According to Roberts majority decision in Obergefellis an act of will, not legal judgment. The right it announced had no basis in the constitution or precedent. Scalia, in his dissent, called attention to the court’s threat to American democracy.  He said that the Judges are selected precisely for their skill as lawyers and whether they reflect the policy views of a particular constituency is not and should not be relevant. To allow the policy question of same sex marriage to be considered and resolved by a select, patrician, highly unrepresentative panel of nine is to violate a principle even more fundamental than no taxation without representation: no social transformation without representation. He concluded that ‘the world does not expect logic and precision in poetry or inspirational philosophy; it demands them in law’.

 

The Constitution Bench in Justice Puttaswamyhas accepted Griswoldand the subsequent judgments based on Griswoldas the law of the land. The history of ‘ordered liberty’ and ‘substantive due process’ finds no reflection in the judgment of the Constitution Bench. The Constitution Bench appears to have been influenced highly by the opinion of Justice Douglas in Griswold, an opinion which even the Judges who concurred with him were reluctant to fully endorse. The Constitution Bench does not appear to have noted that there is no provision similar to 9th Amendment to US Constitution in our Constitution. India is not a ‘Christian civilization’ or ‘western civilization’. The reliance of American concepts of ‘ordered liberty’ and ‘substantive due process standard’ do not appear to be in accord with our constitutional scheme. The ‘incorporation doctrine’ or ‘penumbra concept’ is also no part of our constitutional motley.  It is no part of our law that ‘rights which are deep rooted in American tradition and the conscience of American people’ are fundamental rights. Privacy is a vague concept incapable of precise definition. Privacy as such therefore cannot be a fundamental right. Certain descriptive aspects of ‘privacy’ could be a fundamental right being part of basic concept of ‘liberty’ guaranteed by Indian Constitution. That, of course, is a matter to be decided in the context on a case to case basis. Ours is not a society based on absolute individualism or unrestricted individual liberty. Ours is a society based on the concept of collectivism. Joint family system and community bond have deep roots in our society. Our tradition detests sodomy, bestiality, obscenity and adult incest. Same sex marriage is not deep rooted in our tradition or culture. None of these aspects could be part of right of privacy as a fundamental right under our Constitution.

 

The law laid down in Justice Puttaswamy,if allowed to stand, can have unprecedented, unforeseen and drastic repercussions in our society. Based on Justice Puttaswamymost of the personal laws and law relating to marriage, succession and inheritance may have to be struck down as unconstitutional. Persons marrying persons of same sex can now ask for marriage certificate from authorities as part of their fundamental right. Same sex spouse can now demand succession to the property of the deceased spouse. Law relating to adultery and bigamy will have to be nullified in the name of privacy and freedom of choice. Section 497 of Indian Penal Code (I.P.C.) which provides that   sexual intercourse by any person with a person who is and whom he knows or has reason to believe to be the wife of another man, without the consent or connivance of that person, shall be a criminal offence, will now become unconstitutional because going by the law laid down in Justice Puttaswamysexual liberty is part of right to privacy and a fundamental right. The question as to whether Section 497 of I.P.C. is gender discriminatory or not is presently being examined by the Supreme Court in a case pending before it. That question has now become irrelevant and academic in view of Justice Puttaswamybecause the section as a whole now violates right to privacy. Section 494 of IPC also will have to be struck down. Marrying another person when wife or husband is alive is now a criminal offence. After Justice Puttaswamyindividuals are now free to marry any person of that person’s choice regardless of a subsisting marriage.  Married couples are now free to choose the sex of the child they want to beget. Right to choose the sex of their child is now a part of their right to privacy. Pre-Conception and Pre-Natal Diagnostic Techniques Act, 1994 that prohibits sex determination test will have now to be struck down as violating their fundamental right. Pregnant women can now insist for unrestricted right to abort. In Justice Puttaswamythe Supreme Court has held right to privacy extends not only acts in private but also private acts in public. Therefore, many obscene acts in public which otherwise would have been punishable under Section 294 based on ‘community standard’ test will now become permissible. Under the ‘substantive due process standard’ as prevalent in America, Constitutional courts in India are now free to sit in judgment over the wisdom of the legislature on the ground that the law enacted by legislatures and parliament are ‘unnecessary or inappropriate’. Unquestionable ‘wisdom of the legislature’and ‘will of the people’ have nowbecome relics of the past.

 

In short, Justice Puttaswamy does not appear to be founded on any definite or sound jurisprudential premise. The premise that ‘right to privacy’ as such is a fundamental right is not supported even by the American decisions relied on by the Constitution Bench. There was hardly any justification for the Constitution Bench to overrule Suresh Kumar Kaushal v. NAZ Foundation ((2014) 11 SCC 1). The correctness or otherwise of the decision did not directly arise in Justice Puttaswamy. There is no sound reason for reading vague concept of ‘right to privacy’ into fundamental rights in Part III of the Constitution. On the whole Justice Puttaswamy appears to be ‘counter majoritarian’. The question as to whether ‘right to privacy’ as such should be made a fundamental right or not is a matter best left to the people and their representatives.

 

Foot Note:

*I am grateful to Prof.(Dr.) K.N.Chandrasekharan Pillai, Former Dean, School of Legal Studies, Cochin University of Science & Technology and Former Director of National Judicial Academy who was kind enough to go through the draft of the article and made necessary corrections and modifications.