CASIHR Newsletter VOL IV ISSUE III

#humanrights
Human Rights
COMMUNIQUE Your Quarterly Dose of Human Rights

Centre of Advanced Studies in Editorial Board

Human Rights (CASIHR)

The Cry for Data Protection……………………….2 Prof.(Dr.) Paramjit S.Jaswal,

Patron-in-Chief
Special Legislation: The Need For Balanced
Prof.(Dr.) G.I.S Sandhu
Approach...….………….………………………….6
Patron
A Right Beyond Recognition: Martial Dr. Shilpa Jain
Rape…...……………………………………...……9 Editor-in-Chief

Shafin Jahan V. Asokan K.M & Ors (Hadiya’s Naveed Mehmood Ahmad
Case…………………….….………………….….11 Student Editor
Legislative Analysis of The Prevention Of Atrocities
Act, 1989.……………………..……….………….14

News…………………….……………..…………16

-CASIHR COMMITTEE-
Mr. Prabhpreet Singh Ms. Vibhuti Jaswal Mr. Naveed Mehmood Ms. Priyanka Singhla

Mr. Rohit Jacob Mr. Vishwajeet Singh Mr. Shrey Nautiyal Ms. Smita Gupta

Mr. Animesh Rajpurohit Mr. Sahitya Broka Ms. Munmun Kadam Ms. Nikita Aggarwal

Ms. Stuti Srivastava

CASIHR Newsletter VOL IV ISSUE III

THE CRY FOR

DATA
PROTECTION

An ‘asymmetry of power’ is perhaps what best describes the quagmire of data protection issues that one is faced with these days.
The ubiquity of internet access and convenience of digitised personal data have led to a skewed balance of power wherein the
individual is increasingly beholden to corporate/governmental monoliths; for the most part unknown and unseen. To complicate
matters further, questions such as what constitutes ‘personal data’, who is to be held liable for the breach of said data, what are the
precautionary measures to be necessarily undertaken by data holders etc. remain without a clear and definite answer.

The varying interpretations of personal data encompass everything from the seemingly mundane such as an individual’s name,
favourite books, frequently visited places, choice of foods etc. to the defining aspects of one's personhood viz. political inclination,
sexual orientation, biometric data, credit card details, etc. Such data being intrinsically linked to an individual's sense of self, of
personality and of expression, protection of the same becomes necessary.

The means of collection of personal data too are not without controversy. Proponents of data protection laws often throw up the
question of ‘meaningful consent’ when discussing the methods used for acquiring personal data and rightly so. To hold an
individual of ordinary prudence liable for not reading the fine print in an agreement/contract spanning thousands of pages is quite
frankly absurd. Indeed such instances only serve to emphasise the need for comprehensive data protection laws in an environment
exhibiting a gross asymmetry of power in the realm of contractual relations.

Being so tightly sown into the fabric of modern life, any breach of personal data could result in ramifications far beyond those
conceivable by observers today. This article endeavours to shed light on the concept of data protection as topic of contemporary
relevance. An attempt is made to examine data protection as aspect of international human rights law, elucidate the forms in which
it currently exist, and the need for such laws in India. Further, the recent Cambridge Analytica incident and its implications on
India is sought to be analysed.

PERSONAL DATA

Personal data is an umbrella term for any kind of information - a single piece or a set - that serves predominantly two purposes. It
can be used to personally identify a person or single them out as an individual. The obvious examples are a person’s name, address,
photograph etc. However, the scope of personal data stretches much further covering more intimate aspects of an individual's
identity such as fingerprints, health records, IP addresses, vehicle registration numbers, financial information and so on. Delving
deeper into the aspect of ‘singling out an individual’ leads one to the murky world of internet surveillance. There exists several
means through which private entities and even sovereign governments can ‘single out’ an individual from among a group of people
using a combination of information or other ‘identifiers’ none of which may, individually, be considered personal data. For
instance, online advertising companies use tracking techniques to monitor a person’s online activity so that they may be able to
build a ‘profile’ representative of the individual with all the data relevant data regarding consumer behaviour.

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CASIHR Newsletter VOL IV ISSUE III

It is important to note that in such cases, the company does not the Universal Declaration of Human Rights (UNDR), the
need to know the name of the person or any such primary International Covenant on Civil and Political Rights (ICCPR)
information. A unique identifier such as a number or a code and the European Convention of Human Rights (ECHR). The
coupled with behavioral trends serves the purpose. And it is the Treaty of the European Union establishes that the human rights
pervasive usage of such means to collect personal data that has the ECHR guarantees amount to general principles of EU law.
to led to the current malaise in the realms of data protection.
Recent United Nations (UN) developments also help anchor the
This malaise can more accurately be termed as ‘Big Data’.
right to data protection in the IHRL context. Ever since the
Big Data refers to the novel ways in which organisations, Edward Snowden revelation in 2013, deliberations on the right
governments and businesses, combine diverse digital datasets of privacy and data protection have been fixtures in the UN
and then use statistics and other data mining techniques to agenda. In 2013, the UN General Assembly adopted a
extract from them, both hidden information and surprising resolution on the right to privacy in the digital age. In 2015, the
correlations. And while it is true that big data promises much in UN Human Rights Council appointed a Special Rapporteur on
terms of economics and social benefits, it also raises serious the Right to Privacy. These measures, undertaken by the UN,
concerns regarding data protection and the right to privacy. ‘firmly puts the issue of electronic surveillance within the
These fears were brought to the fore in the fallout of the 2016 framework of international human rights law’.
US presidential election, the Brexit Referendum in UK and other
EU law is perhaps the most advanced one all the laws currently
such instances involving large communities of people. It is
in force with the right to data protection being enshrined at the
argued that access to copious amounts of data relating to these
constitutional level (in the EU Charter of Fundamental Rights),
communities is what led politicians to exploit their deepest fears
and the European Court of Human Rights has construed Article
and anxieties for political purposes. However, the strongest
8 of the European Convention on Human Rights to include data
ground for opposing Big Data in its current form is that of
protection.
informed consent. The proponents of Big Data argue that
whatever information is collected is done so on the basis of In April 2016, the EU passed the General Data Protection
informed consent. However, this view is problematic given that Regulation (GDPR) with this regulation coming into effect from
empirical studies show individuals neither read not understand May 25, 2018. The GDPR is an expansion of the previously
privacy policies which anyway rely on ambiguous legalese, and enacted Data Protection Directive, 1995 (DPD), which is still
are easily modified by firms. Thus, it is too often that consent the most stringent among all international data protection
remains an empty exercise. regulations. The DPD was based on recommendations first
proposed by the Organisation for Economic Co-operation and
Development's (OECD). The directive is founded on seven
DATA PROTECTION IN IHRL principles:

● Subjects whose data is being collected should be given

notice of such collection.
● Subjects whose personal data is being collected should be
informed as to the party or parties collecting such data.
● Once collected, personal data should be kept safe and
secure from potential abuse, theft, or loss.
● Personal data should not be disclosed or shared with third
parties without consent from its subject(s).
● Subjects should grant access to their personal data and
Most international data protection laws, in their current form, allowed to correct any inaccuracies.
subjects the processing of data to defined legal rules in order to ● Data collected should be used only for stated purpose(s)
protect the rights of the individual and interests of society. It is and for no other purposes.
closely linked to the right of privacy and though the two overlap ● Subjects should be able to hold personal data collectors
in several ways, they remain distinct. accountable for adhering to all seven of these principles.

Since personal data is closely linked with an individual's sense of With the passage of time several limitations of the DPD became
personality and therefore privacy, the need for its protection apparent and therefore, the GDPR is an essential step to
finds force in all the landmark human rights instruments such as strengthen citizens' fundamental rights in the digital age and

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CASIHR Newsletter VOL IV ISSUE III

facilitate business by simplifying rules for companies in the In the United States, the Federal Trade Commission has begun
digital single market. A single law will also do away with the an investigation into Facebook’s privacy practices. State and
current fragmentation and costly administrative burdens. The Local governments in the US have also filed suits against
successes and failures of this experiment in the EU is likely to lay Facebook. In the U.K., the Information Commissioner’s Office
the foundations for Data Protection regulations in the rest of the (ICO) recently executed a search warrant against Cambridge
world. Analytica. This was done in furtherance of the the ICO’s
investigation into the use of personal data analytics for political
purposes, which is the allegation facing Cambridge Analytica.

CAMBRIDGE ANALYTICA In this context, the lack of a statutory data protection law in
India becomes glaringly obvious. And as such, legal liability for
theft of data, if at all, arises only out of contractual relations.
The said relations being: between the researcher and Indian
Facebook users, and between Facebook and its Indian users,
with the relation between facebook and the researcher being
beyond the scope of Indian law. Regarding the former, there is
almost no chance of the researcher being liable under Indian law.

Concerning the relationship between Facebook and its Indian

users, it is well within the realms of possibility that facebook is
protected under Indian law as merely an intermediary that
As mentioned before, personal data primarily serves two facilitated transaction between app developers and users. Thus,
purposes, to identify a person or to single him/her out as an as per Section 79 of the Information Technology Act, as
individual. The latter part can, however, be extended to groups amended in 2008, Facebook may be protected under the safe
of similar individuals and even large communities. Such harbour principle. The nature of this provision requires that the
information, the access to which enables the possessor to less knowledge Facebook had of its users’ activities, the less
manipulate and exploit the vulnerabilities of an entire liability it would incur in case of a breach. And considering that
community, and the rampant disregard with which it is protected the Supreme Court of India in Shreya Singhal v. Union of India
is what is at the centre of the Cambridge Analytica scandal. stated that intermediaries need only take down content upon the
serving of a court order, it is entirely likely that, under Indian
To quickly recount the facts: a university researcher used law, the entire Cambridge Analytica scandal and all the political
facebook to host an application he had designed to predict the controversy it created, would not result in any liability for any
personality of users. The app, called ‘thisisyourdigitallife’ was party.
used by more than 270,000 people and in the process, it
collected personal data not only of the participants but also of
their friends on social media. All this data is then alleged to have
THE FUTURE
been sold by the researcher to Cambridge Analytica who in turn,
used it for dubious political objectives. That something like the Cambridge Analytica scandal had to
break out exactly when India had constituted an expert
When news of this scandal broke, the shockwaves were felt as
committee on data protection was perhaps written in the stars.
far and wide as Kenya and India with the epicentre being the
Indeed, the Committee headed by Justice Srikrishna is now
United States of America. The main allegation against
responsible not just for formulating a functional data protection
Cambridge Analytica is that it misused the personal data of
law for India but also for ensuring that the same works in
millions of Facebook users to flood them with targeted
harmony with other such laws in different jurisdictions. For a
advertisements and political propaganda which then played a
nation endeavouring to brings the entirety of its population
significant part in swaying actual election results. This case,
under an online database premised on biometric information,
which is unprecedented in may ways, poses several challenges
the significance of this committee and its prospective
even for countries who have implemented a data protection
recommendations cannot be understated.
regime. And for the rest of the world, to which India belongs, it
just highlights the urgency with which such laws are needed.

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CASIHR Newsletter VOL IV ISSUE III
to other fields of business). As practices change and as risk
changes, the measures needed to ensure compliance will evolve
as well. In this way, a risk-based approach stresses the
importance of implementing a sound data protection culture,
rather than meeting one-off compliance formalities.

The position in India, as a result of Puttaswamy v Union of India is,

in general, the same as the EU: Privacy is a fundamental,
inalienable right with the ability of governments to derogate
from it requiring considerable justification. Therefore, the new
GDPR may be of particular relevance for the committee’s
To avoid the utter helplessness we currently find ourselves in consideration.
after Cambridge Analytica, it is necessary that the new law
incorporate elements of extraterritoriality of jurisdiction, make With the threats posed by data theft being so numerous and
concerted efforts to clearly define the ambit of personal harmful, one can only hope that the legislative reactions will be
information, detail mechanisms with which to tackle the commensurate both in terms of vigour and effectiveness.
onslaught of Big Data, and also pay special attention to
ascertaining the meaning of informed consent from the users of
data.

The implementation or ‘back-end’ aspects, i.e. the processes to

ensure that these general principles are respected, should be
delivered in clear and lucid terms, which need to be created or
defined at the national level. The main drawback of the EU
DPD was that a few key terms, of seminal importance to its
enforcement, were not clearly defined.

Further discussion will be required to clarify how regulations can

appropriately consider and address the presence of risk in ex-ante
scenarios. Possible criteria or avenues for determining the risk
involved in specific categories or acts of data processing include:

● the scale on which personal data is processed (e.g. more

stringent requirements could be applied to the processing
of personal data based on numbers of data subjects
involved);
● the privacy sensitive nature of the data being processed,
and more specifically whether the nature of this data
causes it to be more likely to result in harm, considering
the full context of the data processing (e.g. the processing
of health-related information, racial information, etc) and
● the field of activity of the data controller, as a proxy for
the risk of harm (e.g. financial services, health care, legal
services).

While risk is often difficult to determine ex ante, the strength of a

risk-based approach lies precisely in the need to evaluate how
risk changes dynamically as data processing practices evolve (e.g.
because of changes in the scale of data processing, or expansions

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CASIHR Newsletter VOL IV ISSUE III

SPECIAL
LEGISLATIONS:
THE NEED FOR
A BALANCED
APPROACH

The purpose and intent of any legislation is to promote as well as protect the rights, liberties and interests of society in general or of any
section or class thereof, with its enforcement being binding in nature. Further, law making ensures the regulation of human conduct
which is quintessential to civil life. But, the legislation made for furthering the objectives so defined are to be within the contours of the
Constitution. The same can be said to be the jurisprudence being followed while making of any particular legislation in India. The
Indian Constitution ensures equality before law in addition to prohibiting any discrimination on the basis of certain classification as
mentioned under Article 14. The law making in any state machinery reflects the social structure and the contemporary challenges being
faced by the different elements of the society as well as the system. The legislation on any subject-matter, therefore, reflects the efforts
made by the state to tackle those issues in an efficient and effective manner. Therefore, in the Indian context, owing to centuries of
institutionalised discrimination under the combined aegis of the caste system and patriarchy, social realities have an added impact on
law making. For the same purpose, Article 15 of the Constitution of India allows the state to give form to specific provisions dealing
with the legal protection and advancement of women, children, socially backward classes or for the Scheduled Castes and the
Scheduled Tribes.

But do these special legislations frustrate the purpose for which they were formulated? Are they prejudicial to the rights of others? In
this regard, some legislation(s) have been on the receiving end of great criticism as being prejudicial, being misused and contrary to the
purpose for which they come into force. Such legislations include the provision of 498-A of the Indian Penal Code, 1860, Domestic
Violence Act, Dowry Prohibition Act as well as the SC/ST (Prevention of Atrocities) Act, 1989 which has been doing the rounds in
the media after the recent Supreme Court directive. The question which arises in response to making of such legislation(s) is the
effective implementation of such laws and the same not being a barrier to the rights of others. For the same purpose, it is important to
examine the controversy surrounding the two of the legislations in brief.

SECTION 498-A, INDIAN PENAL CODE, 1860

The addition of section 498-A in the code was made in the year 1983 as a response to a growing number of incidents of married
women being subjected to cruelty by their husbands and his relatives. The same was a result of the social and cultural factors affecting
women on a large scale, and as a step to safeguard the rights, liberties and uphold the dignity of women, the provision was enacted. The
offence under the same was made cognizable, non-compoundable and non-bailable. In course of time, reports of misuse of the
provision in the form of registration of false cases and malafide implication of relatives started to come in. Later, the judiciary in several
cases noted the provision being used as a weapon to implicate the husband and his relatives noting the need for a serious relook of the
provision by the legislature in the larger interest of the society. The judiciary also gave certain directions to the police authorities with
regard to the steps to be taken on receiving complaints under the provision. As a result of the controversy surrounding the provision,
the matter was taken up by the Law Commission to make recommendations pursuant to a reference made by the Law Ministry on
whether the said provision required any amendment. In response to the same, the law commission reiterated its previous stand of
making the offence compoundable with the permission of the court but answered in negative on the question of the amendment of the
provision. The view of the commission on retaining the provision without any changes was in observance of the greater societal needs
and realities.

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SC/ST (PREVENTION OF ATROCITIES) ACT, 1989

The socially marginalized sections of the society have been

victims of discrimination as well as atrocities due to a number of
social, cultural and historical reasons. The basis of such
discrimination is rightly characterized as unreasonable, owing to
the very idea of its inception being based on the premise of birth
in a certain community;. The lawmakers, to deal with such a grim
situation incorporated certain provisions in the Constitution
itself in order to safeguard their rights. In addition, provisions of
the Indian Penal Code and the enactment of the Protection of
Civil Rights Act, 1955 came to the rescue of victims for the
protection of their civil and constitutional rights. Despite these
measures, existing legislations were found to be inadequate to
deal with the ever-growing problem of atrocities committed
against the Scheduled Caste and Schedule Tribes. Certain
incidents of atrocities leading to assassinations and massacres
prompted the government, as a necessary response, to call for
making of a special legislation in the form of the SC/ST Act
(Prevention of Atrocities) Act, 1989. The act provided for
prevention of atrocities and establishment of special courts to try
the matters, apart from making available measures for relief and
rehabilitation of the victims.
the rights of the other party who is being falsely implicated.
Therefore, the act devoid of any procedural safeguard, required
guidelines to be followed by the authorities before initiating
prosecution and making any arrest. The decision led to an uproar
among the members of marginalised communities who claimed
that the judgment had rendered the act toothless, and the
directives so issued diluted the act gravely.

ANALYSIS

The controversy involving the verdict is with regard to the

directives which are contrary to the provisions of the act. For
instance, the act bars grant of anticipatory bail to the accused
which is a statutory right under section 438 of the Criminal
Procedure Code. The judges in the instant case have observed
the same as being violative of the right to life and personal
liberty. They further enunciated on this matter by observing that
though the right under section 438 is part of a procedural law
which is a statutory right, the same has to pass the test of being
just, fair and reasonable. This was based on the argument that
the grant of anticipatory bail on appreciation of the facts cannot
be denied, as safeguarding the interest of one party cannot be
done at the behest of denying some rights to the other. On the
contrary, the Supreme Court has held in State of M.P. v. Ramrishna
Balothia (1995) that bar on anticipatory bail under the act is not
THE CONTROVERSY violative of rights under Article 14 and 21. Further, the
observation of the court is keeping in view the NCRB data
The country came to a halt on multiple occasions in response to which highlights the number of acquittals in cases filed under the
the two-judge decision by the apex court in the case of SK provisions of the act. The same cannot be said to have given a
Mahajan v. State of Maharashtra delivered on 20th March, 2018. The correct picture involving the state of affairs, as acquittal does not
case involved directives by the court in matters under the SC/ST necessarily imply the case being motivated by some ulterior
Act to protect public servants and private citizens from arbitrary motive to cause hardship to the opposite party. The acquittal can
arrest. The decision was made by the court citing National Crime be attributed to improper investigation, lack of evidence, witness
Record Bureau’s (NCRB) data regarding the high rate of turning hostile or improper prosecution/appreciation of the
acquittal in cases filed under the act. The court observed that case. Also, the act under section 22 gives protection to public
filing of false cases leads to misuse of the act, thereby affecting servants for actions taken in good faith.

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CASIHR Newsletter VOL IV ISSUE III

TRIVIA

Claudette Colvin was the first person

arrested for resisting bus segregation, 9
months before Rosa Parks, but was not
used as a figurehead for the civil rights
movement because she was an unmarried,
The apex court, further, by formulation of procedures to be pregnant, teenager.
followed has stepped into the domain of the legislature; an act
for which the Indian judiciary is often criticised. It is also to be
noted that the case was regarding quashing of an FIR registered
under the act and not a Public Interest Litigation or a matter
challenging the validity of the provisions. The act took the form
of a welfare legislation keeping in view the social realities of the In 2014 more than 1/3 of governments
SC/ST communities, the denial of their rights and the hardships
faced in enjoying their rights. The vires of the act is also around the world, 62 out of 160 locked up
endorsed by the provisions of the constitution whether prisoners of conscience – people who were
specifically dealt by Article 14, 15 and 17 and the same in no
possible manner is an impediment to the right of others.
simply exercising their rights and freedoms.
CONCLUSION

The approach to be taken in such situations and other such

matters of significance is of balancing the interests of the society
in order to avoid any disagreement among the masses. But, do
special legislations have to do away with the punishment of the
person indulging in misuse of the same by registering false cases?
The legislature has provided for punishment for false or
malicious complaint and false evidence in certain statutes, for
instance, in the Sexual Harassment of Women at Workplace
(Prevention, Prohibition and Redressal) Act, 2013. The special
laws should be wholesome to the extent that it must contain an
inbuilt provision for securing justice for those who are falsely
implicated with mala fide intent under it. The same is not the
situation concerning the Prevention of Atrocities Act.

Further, even going by the limited observations of the court

regarding the cases (in absence of comprehensive data), the
registration of false cases are not limited to section 498-A and
the Prevention of Atrocities act; it encompasses the domain of
other special and general laws as well. The corollary to the same
is whether on the basis of a number of false cases (whose real
numbers are unknown in absence of an empirical study); the
special laws be diluted against the purpose and object for which
they are formulated? How should the interest of the needy and
the greater interests of the society be maintained? The answer
lies in the approach which needs to be taken by the judiciary and
legislature keeping in view the contemporary times and the social
realities; striving for balancing the rights of the stakeholders.

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CASIHR Newsletter VOL IV ISSUE III

A RIGHT
BEYOND
RECOGNITION:
MARITAL RAPE

It’s not Consent if you make me afraid to say “NO”

- A Marital Rape Victim

Marital Rape is a concept which many find hard to comprehend. When one contemplates the word rape, the propensity is to consider
only an outsider, a stranger, a pernicious individual, as someone capable of committing such an act. Typically, one does not consider
rape with regards to marriage. Women themselves find it difficult to believe that a man can assault his better half. All things considered,
by what means can a man be blamed for assault on the off chance that he is benefiting his matrimonial rights. It is demonstrative that a
lady has no privilege to her own particular body, and her will is liable to that of her significant other. In spite of conjugal rape being
perhaps the most normal and repulsive type of masochism in the Indian culture, it is well disguised up behind the iron drapery of
marriage. While the legal definition varies, marital rape can be defined as any unwanted intercourse or penetration (vaginal, anal, or oral)
obtained by force, threat of force, or when the wife is unable to consent. In spite of the pervasiveness of conjugal assault, this issue has
gotten moderately little consideration from social researchers, experts, the criminal equity framework, and bigger society in general.

The word ‘rape’ has been derived from the term ‘rapio’, which means ‘to seize’. Rape is therefore, forcible seizure, or the ravishment of a
woman without her consent, by force, fear or fraud. 10 to 14 percent of all married women and at least 40 percent of battered wives in
the United States have been raped by their husbands. Marital rape is an act in which one of the spouses indulges in sexual intercourse
without the consent of the other.

MARITAL RAPE AND LAWS IN INDIA

Presently in India, marital rape is not a criminal offence. The Supreme Court of India has aptly described it as ‘deathless shame and the
gravest crime against human dignity’. It is protected under an exception to the statutory provision of rape, under Section 375 of the
Indian Penal Code, 1860. The exception reads as follows:

“Sexual intercourse by a man with his own wife, the wife not being under fifteen years of age, is not rape.”

This exception is draconian on two counts: firstly, on account of its refusal to term non-consensual sexual intercourse with a woman by
her husband as rape; secondly, because of the fact that non-consensual sexual intercourse with a minor wife is also not termed as a
rape.

Beyond the age of 15, there is no remedy the woman has. The Indian Penal Code was amended in 1983 to make way for the
criminalization of spousal rape during the period of judicial separation. In 2005, the Protection of Women from Domestic Violence
Act, 2005 was passed which although did not consider marital rape as a crime, did consider it as a form of domestic violence.

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CASIHR Newsletter VOL IV ISSUE III

On the 11th of October, 2017, the Supreme Court of India

passed a landmark judgement in the matter of Independent Thought
v. Union of India, wherein it read down an exception to the
statutory provision of rape, under Section 375 of the Indian
Penal Code. The Court has held that it should meaningfully be
read as “Sexual intercourse or sexual acts by a man with his own
wife, the wife not being under eighteen years of age, is not rape.”
The change in this rule has been the increase of age from sixteen
years previously to eighteen years.

This Landmark judgement protects the interests of minor

recommendations made by the Task Force vis-à-vis rape under
children, and brings the law into consonance with all other
the Indian Penal Code, the most significant pertains to the
statutes, which deal with the protection of children’s rights, like
definition of rape. It took the position that the definition of rape
the Juvenile Justice (Care and Protection of Children) Act, 2012,
ought to be broadened to include all forms of sexual abuse. As
Prohibition of Child Marriage Act, 2006 and the Protection of
per the recommendation, the Law Commission’s proposed
Children from Sexual Offences Act, 2012.
definition of “sexual assault” could be adopted in place of the
Recently, the Gujarat High Court reiterated the need for the existing definition of rape in Section 375 IPC as “it is wide,
legislature to criminalise the sexual attacks on women, by their comprehensive and acceptable”.
husbands. It was stated that “The total statutory abolition of the
172ND LAW COMMISSION REPORT
marital rape exemption is the first necessary step in teaching
societies that dehumanized treatment of women will not be Even the 172nd Law Commission report which was passed in
tolerated and that marital rape is not a husband's privilege, but March 2000 had made the following recommendations for
rather a violent act and an injustice that must be criminalized.” substantial change in the law with regard to rape.
This need was also recognised by the Justice Verma Committee,
which recommended the criminalisation of the same. • ‘Rape’ should be replaced by the term ‘sexual assault’.
• ‘Sexual intercourse as contained in section 375 of IPC
The Legislature has however, yet to take any action for the same
should include all Forms of penetration such as
and often defends its stance that there is no need for the
penile/vaginal, penile/oral, finger/vaginal, finger/anal and
criminalization of marital rape. Maneka Gandhi, the Union
object/vaginal.
Minister for Women and Child Development stated in
• In the light of Sakshi v. Union of India and Others, ‘sexual
Parliament “the concept of marital rape as understood
assault on any part of the body should be construed as rape.
internationally cannot be suitably applied in the Indian context
due to various factors like level of education, illiteracy, poverty, • Rape laws should be made gender neutral as custodial rape
myriad social customs & values, religious beliefs, mindsets of the of young boys has been neglected by law.
society to treat the marriage as a sacrament etc.” • A new offence, namely section 376E with the title ‘unlawful
sexual conduct’ should be created.
42ND LAW COMMISSION REPORT • Section 509 of the IPC was also sought to be amended,
providing higher punishment where the offence set out in
The Law Commission of India in its 42nd report put forward the said section is committed with sexual intent.
the necessity of excluding marital rape from the ambit of Section
• Marital rape: explanation (2) of section 375 of IPC should
375. Many women’s organizations and the National Commission
be deleted. Forced sexual intercourse by a husband with his
for Women have been demanding the deletion of the exception
wife should be treated equally as an offence.
clause in Section 375 of the Indian Penal Code which states that
“sexual intercourse by a man with his own wife, the wife not Rape is a reprehensible act that leaves a body defiled. Rape
being under fifteen years of age, is not rape”. victims in the criminal justice system are often forced to relive
the event. However, it is even worse for victims of marital rape,
However, the Task Force on Women and Children set up by the
because they can never leave the scene of the crime. There is
Woman and Child Department of the Government of India
hence, a serious need to reform the current law to criminalise
took the view that there should be wider debate on this issue.
marital rape.
The mandate of the Task Force was to review all existing
legislation and schemes pertaining to women. Of the four

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CASIHR Newsletter VOL IV ISSUE III

Shafin Jahan
v.
Asokan K.M &
ORS
(Hadiya’s Case)

“It is not just her freedom to choose, her physical freedom has also been curtailed. She is effectively a prisoner at her father's house right now”

_Kavita Krishnan, Women's rights activist

INTRODUCTION

The case of Shafin Jahan v. Asokan K.M. (Hadiya’s case) which had a bearing on inter-religious marriages and a woman’s right to marry,
the case concerning the cherished value of liberty of an individual, the infamous case which was titled by media as ‘Love Jihad’ was a
unique one. The rights of an adult woman were being questioned in the case. The allegation that a radical organisation was involved in
influencing the girl to change her religion and further her parents’ concern that she was to be taken out of India, made the case all the
more complex. The Supreme Court, through its order dated 08.04.2018 and judgement dated 09.04.2018 annulled the Kerala High
Court Judgement.

FACTS

Ms. Akhila Asokan alias Hadiya was a Hindu by birth. During her college education , she converted to Islam and started residing at her
friend’s house. Her father, unaware of her whereabouts, filed a Writ Petition of Habeas Corpus before the Kerala High Court. When
the girl appeared before the high court, her father came to know about the conversion of her religion; he alleged that she had been
forcefully converted.

Following this, another writ petition was filed by her father alleging that she was likely to be taken out of India. But later, Akhila
appeared before the court and declared that she had married Shafin Jahan, a Muslim and produced the marriage certificate, on which
her name was mentioned as Hadiya. The court saw this move with suspicion, because the investigation carried out showed that Shafin
Jahan was accused of criminal offence and had radical tendencies.

The High Court in its final order granted Akhila’s custody to her father and declared the marriage null and void. Challenging the order
of Kerala High Court, Shafin Jahan filed an appeal in the Supreme Court. The Supreme Court, on further investigation, restored their
marriage.

ISSUES RAISED

● Can a High Court annul a marriage under Article 226 of the Constitution of India?
● Was an NIA probe necessary?

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JUDGEMENT
Sh. Asokan K.M., father of Akhila, on 16.08.2016 filed a writ
The Supreme Court set aside the judgment of Kerala High Court petition claiming that there was a risk that his daughter could be
that had annulled the marriage of Hadiya and Shafin Jahan and taken away to Syria to join extremist organisations like ISIS. He
thus restored the marriage. The Court further made clear that further claimed that the conversion was suspicious as it was
the investigation by the NIA in respect of any matter of assisted by a certain radical Muslim organisation and under
criminality shall continue but without any interference in the coercion/misrepresentation.
marriage. A 3-judge bench consisting of the Justice Dipak Misra,
Justice AM Khanwilkar and Justice DY Chandrachud removed
Further, the marriage between hadiya and Shafin took place
Hadiya from the custody of her father and also sent her back to
immediately and without informing the Court while said petition
college after she expressed her wish to continue her studies.
was still sub judice. Interestingly, in a subsequent hearing on
21.12.2016, Shafin Jahan accompanied Akhila, who stated that
he intended to take her abroad where he was working. This
CASE ANALYSIS contradictory statement created a reasonable doubt in the eyes of
the Court and therefore, it was justified to order a probe.
Article 226 of the Constitution of India, gives a wide range of
powers to the High Courts, for enforcing the rights conferred by
The debate on ‘love jihad’ is politically motivated and has
Part III of the Constitution and ‘for any other purpose’. It has
ulterior motives. Love jihad is a bogey. In a country as diverse as
been argued that the High Court can annul a marriage if it is
ours, assuming, though not accepting, even if a few hundred
satisfied that the marriage had been orchestrated under
such cases are there, this cannot be termed as ‘love jihad’ or an
suspicious circumstances. There is a lack of decisions which
organised effort by some Muslim radicals to convert Hindu girls.
address this specific issue raised by the Supreme Court in Shafin
Jahan v. Asokan K.M. case (Hadiya case). The Indian law, in fact promotes, so called ‘love-jihad’ by
allowing marriages between persons belonging to different
In Asokan K.M. v. Superintendent of Police, the initial writ petition in
faiths. The Special Marriage Act, 1954 governs inter-religious
the Kerala High Court, it was held that marriages can be
marriages. It is strange that the Kerala High Court which itself
nullified based on aggravating facts and circumstances. The
was convinced due to the girl’s and boy’s testimony in the case
Court did a thorough analysis of the circumstances which led to
that it is not a case of undue influence on the girl which made
the marriage and observed that the case was not an ordinary one.
her perform a sudden U-turn in the decision of marrying a
The Court, keeping in mind the aggravating circumstances and
person of other religion. Here, marriage took place after a
the plight of Akhila’s parents, declared the alleged marriage null
matrimonial advertisement was given by the girl and, therefore, it
and void.
is not a case of ‘love jihad.’

The second issue framed by the Apex Court questioned the Parental custody ends upon a child attaining the age of maturity.
necessity for a central level investigation. In August 2017, the SC In this case, the girl attained maturity eight years ago, yet her
directed the Kerala Police to assist the National Investigation custody was given to her father by the High Court. Her
Agency in examining whether this case is an isolated one or a individual autonomy to take her own decisions had been
bigger conspiracy is involved. The Apex Court in Bharati seriously undermined.
Tamang v. Union of India, enunciated principles which allowed
Courts to ensure the effective conduct of prosecution. Giving a The Kerala High Court judgment reflects patriarchy as it
considers women vulnerable. Moreover, the validity of a
wide range of powers to Courts to ensure that there are no
marriage cannot be decided by any high court if the parties are
instances of miscarriage of justice, the Courts, if need be, can
adult.
even constitute Special Investigation Team(s) or entrust the
responsibility to CBI or any other independent agency to carry
out an independent probe into the case. The High Court has,
therefore, inherent and wide powers under Article 226 of the
Constitution and can direct NIA to undertake investigations to
better appreciate the suspicious and complex chain of events.

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CONCLUSION
As for the question of annulling a marriage which doesn’t
depend on any pattern, the author believes that the High Courts
have a wide range of power and jurisdiction under Article 226. If
the circumstances so demand and there is a clear case of
misrepresentation and coercion, the Court should indeed annul a
marriage (depending solely on the facts and circumstances). The
Supreme Court has an opportunity to analyse and hear both
sides of the story as it will do and lay down the law which is
required to mitigate such sham marriages.

Individualism is the central theme of civil liberties under our

Constitution. Individual autonomy in terms of choices of food,
dress, religion etc. has now been upheld by the Apex Court in
the Nine-Judge Bench Privacy Judgment. Conversion to another
religion as well as the option of marrying a person of one's own
choice are an integral part of individualism with which the state
and others should have no concern. Thus, courts cannot probe
the validity of marriage if the two adults have married under
applicable personal law.

It is a sad commentary of our judicial system that initially

Hadiya's marriage was annulled by the High Court of Kerala on
the grounds of a report submitted by the National Investigation
Agency (NIA) to the Supreme Court of India (SC), saying that
Hadiya was a victim of indoctrination and psychological
kidnapping, and that their claims of their marriage being
arranged through a matrimony website were "bogus" but in
March 2018, the Supreme court restored Hadiya's marriage, 10
months after the Kerala High Court annulled it.

The Kerala HC was justified in ordering an NIA probe in the

case because clearly it was not an ordinary case and had created
suspicion and doubts in the eyes of the Court. The media simply
stops itself to saying that Court has no right to interfere in the
marriage of two consenting adults.

However, they clearly missed out on the contumacious facts and

circumstances which led to the marriage intending to defeat the
purpose of court proceedings. The marriage is indeed a sham
and the NIA investigation would allow the Court to better
appreciate the pattern of love-jihad which is prevalent in
Southern states.

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LEGISLATIVE
ANALYSIS OF THE
PREVENTION OF
ATROCITIES ACT,
1989.

INTRODUCTION
The Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 has been enacted by the legislature to provide
relief and rehabilitation to the members of the SC and ST Community. The Prevention of Atrocities Act, hereinafter, POAC, was
passed as a successor to the Untouchability (Offences) Act, 1955 which was later renamed as the Protection of Civil Rights Act, 1955.
However, the question subsists that after more than 60 years of enforcement, have these laws been able to serve their purpose and
prevent instances of atrocities against the SC and ST Community. Recently, after the Supreme Court’s decision in the case of Dr.
Subhash Kashinath Mahajan v. The State Of Maharashtra, 20181, there has been a major hullabaloo regarding the judgment
diluting the effect of the POAC Act. Protests broke out throughout India after the Judgment thereby aggravating an already volatile
situation. However, the Supreme Court rejected the Review Petition filed against the Judgment. The Supreme Court Bench of Justice
U.U Lalit and Justice Adarsh Kumar Goyal directed that;
“In absence of any other independent offence calling for arrest, in respect of offences under the Atrocities Act, no arrest may be effected, if an accused person is a
public servant, without written permission of the appointing authority and if such a person is not a public servant, without written permission of the Senior
Superintendent of Police of the District.”
The major drawback of the Act has been its faulty implementation. Moreover, its provisions have also been termed as harsh and
majority of the cases filed have led to acquittals as the claims were mostly vexatious and aimed at making false charges against the
accused. As per the National Crime Reports Bureau (NCRB) data on cases of atrocities against SC and ST disposed by the courts in
2016, there is a 25.7 per cent conviction rate in the 1,44,979 cases filed by SC complainants under the Act, whereas there is a 20.8 per
cent conviction rate of the 23,408 filed by ST complainants.1
Therefore, the Judges in the Subash Kashinath1 Case remarked that
“At the same time, the said Act cannot be converted into a charter for exploitation or oppression by any unscrupulous person or by police for extraneous reasons
against other citizens as has been found on several occasions in decisions referred to above.”
KEY PROVISIONS OF THE ACT
● Section 3 of the Act provides for a category of offences committed by an individual not a member of the ST-SC community
which are punishable under the Act for not less than six months but which may extend to five years and with fine. The 2015
Amendment of the Act made the list more exhaustive and included “manual scavenging”.
● The Act provides that any public servant not an S.C or S.T who willfully neglects his duties under the Act, shall be punishable
with imprisonment for a term which shall not be less than six months but which may extend to one year.

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● Section 8 of the Act deals with presumptions regarding has been occasionally used against individuals with malicious
certain acts, firstly, that any person finally assisting the intent. A 2015 report by PEN International concluded, “Arguably
accused shall be presumed to, unless the contrary is does not rise to the level of hate speech. Again, the vague and overbroad
proved, have abetted the offence; Secondly, regarding a language of the act, which targets humiliating rather than hateful speech,
group of persons committing a crime which is a sequel makes it ripe for abuse.” Therefore, the ambiguities and draconian
to any existing dispute regarding land or any other provisions in the legislation exist at multiple facets. The
matter, it shall be presumed that the offence was Legislature should bring amendments to the law, and provide for
committed in furtherance of the common intention or reliefs such as anticipatory bail. Moreover, the Government
object. The following Sections raise a presumption on should attempt to dislodge its burden under Section 21 for
the accused which increases the onus on him to rebut effective implementation of the Act
it.
● The Act provides for the purpose of ensuring speedy
trial. Accordingly, the State Government shall, with the
concurrence of the Chief Justice of the High Court,
specify for each district a Court of Session to be a
Special Court to try the offences under this Act.
● As per Section 18 of the Act anticipatory bail cannot be
provided to an accused under this Act. Thereby, TRIVIA
creating an extraordinarily high burden on the accused
to prove himself/herself innocent in the future. Around 28 countries have laws which
● Moreover, the provisions have been made stricter as completely ban abortion even in cases
the Probation of Offenders Act is not applicable to any where a woman’s life or health is in danger
person who has attained the age of majority.
and in cases of rape.
● The Act will override any other law or custom, as per
Section 20 of the Act.
● Section 21 of the Act provides for broad measures that
should be taken by the Government for the effective Because a large number of black males are
implementation of this Act. It has been on this ground unable to shave without severe irritation,
that Governments have repeatedly failed as they have
not been able to provide a solution to the problem at
Domino’s was found in violation of the
grass root level. 1991 Civil Rights Act for requiring all their
employees to be cleanly-shaven.
CRITICAL ANALYSIS
Cumulatively the Act provides for a harsh treatment against the
accused as there are multiple provisions in the Act which are
extremely tough for him/her. Provisions preventing Anticipatory
bail, making the provisions of the Probation of Offenders Act
not applicable and presumption of certain offences make this
special act extremely harsh; therefore, it becomes imbalanced
and adversely impacts the rights of the accused. The underlying
theme behind the Act is to create deterrence in the society by
making acts which aim to humiliate members of the SC-ST
Community punishable as per the law. Even though the
legislative intent behind passing the Act was nobel and bonafide,
the Act has been used vexatiously and the conviction rate has
been a mere 25.7% Furthermore, Human Rights Watch, an
international Human Rights watchdog in its 2016 Report
categorically mentioned the POAC and stated that the law

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INTERNATIONAL NEWS NATIONAL NEWS

• Iraq: Women And Children With Perceived Ties To Is • AFSPA Removed From Meghalaya After 27 Years
Denied Aid, Sexually Exploited And Trapped In Camps
The Centre has withdrawn the Armed Forces Special Powers
Iraqi women and children with perceived ties to the armed group Act (AFSPA) totally from Meghalaya as well as from 8 police
calling itself the Islamic State (IS) are being denied humanitarian stations in Arunachal Pradesh.AFSPA gives special powers
aid and prevented from returning to their homes, with an and immunity to the armed forces deployed in areas declared
alarming number of women subjected to sexual violence, “disturbed” under the Act.Human rights activists in the
Amnesty International said in a new report published today. The northeast have been agitating for withdrawal of AFSPA and
research carried out by Amnesty International shows that women even scrapping of the law, a demand that became louder in
and children in IDP camps across Iraq are denied food and health the wake of the rape-cum-murder of Manipuri woman
care as a result of their perceived ties to IS. Thangjam Manorama in 2004 for which the locals blamed
Assam Rifles personnel.
• Icc Prosecutor’s Unprecedented Bid To Bring Justice
To Rohingya • Union Cabinet approves Ordinance for death
penalty for rape of girls under 12 years
International Criminal Court (ICC) prosecutor, Fatou Bensouda,
asked the court’s judges to rule on whether the ICC “can exercise The Union Cabinet on Saturday approved promulgation of
jurisdiction over the alleged deportation of the Rohingya people an Ordinance to provide death penalty for rapists of girls
from Myanmar to Bangladesh.”Bangladesh is a member of the below 12 years, according to a senior government official.
ICC, but Myanmar isn’t. This distinction is critical because, since The Criminal Law (Amendment) Ordinance provides for
the ICC lacks jurisdiction over Myanmar, the most obvious path stringent punishment of a jail term of minimum 20 years or
to justice for victims of crimes committed against ethnic life imprisonment or death for rape of a girl under 12 years.
Rohingya is through a United Nations Security Council referral to
the court. The prosecutor’s legal argument is an attempt to assert
jurisdiction over “deportation,” one of the well-documented
crimes attributed to Myanmar’s armed forces against the
Rohingya. Since crossing a border is a legally required element of
the crime of deportation,victims being forced to cross into the
territory of Bangladesh would be a part of that “conduct.” It’s for
Contributions are invited for the
the judges to decide on the merits of the argument. But the issue of the CAHIHR Newsletter. The
prosecutor’s decision to seek a ruling on whether the ICC can act last date is and it can be
based on existing jurisdiction speaks to the gravity of the mailed on casihr@rgnul.ac.in
situation.

• Egypt: Looming Humanitarian Crisis in Sinai

The Egyptian government campaign against an affiliate of the

Islamic State group in North Sinai has left up to 420,000 residents
in four northeastern cities in urgent need of humanitarian aid.
The government should provide sufficient food for all residents
and allow relief organizations such as the Egyptian Red Crescent
to immediately provide resources to address local residents’
critical needs. The military campaign against the Islamic State-
affiliate in North Sinai has included imposing severe restrictions
on the movement of people and goods in almost all of the
governorate. Residents say they have experienced sharply
diminished supplies of available food, medicine, cooking gas, and
other essential commercial goods.

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