International Journal of Law

International Journal of Law

ISSN: 2455-2194, RJIF 5.12
www.lawresearchjournal.com
Volume 3; Issue 1; January 2017; Page No. 01-06

“Power of arrest is under arrest”: A critical analysis in light of code of criminal procedure, 1973
A Nirmal Singh Heera, N Prabhavathi
Assistant Professor, School of Law, SASTRA University, Thanjavur, Tamil Nadu, India

Abstract
Arrest brigs humiliation – Arrest curtails the freedom of individual - Arrest involves restriction of personal liberty of a person
arrested and as such violates the basic human rights of liberty - Though the Constitution of India as well as international covenants
recoginse the power of the state to arrest any person as a part of its major role in maintaining the law and order problem, the
Constitution of India mandates that “No person shall be deprived of his life or personal liberty except according to procedure
established by law.” Article 22 (1) provides that “no person who is arrested shall be detained in custody without being informed, of
the grounds for such arrest nor shall he be denied the right to consult, and to be defended by, a legal practitioner of his choice” -
Further, Article 22 (2) also mandates that “every person who is arrested and detained in custody shall be produced before the
nearest magistrate within a period of twenty four hours of such arrest excluding the time necessary for the journey from the place
of arrest to the court of the magistrate and no such person shall be detained in custody beyond the said period without the
authority of a magistrate” - According to the national Human Rights Commission, these provisions are not strictly adhered to -
Therefore, in this paper the authors are going to analyse under what circumstances the arrest can be made and what are the legal
provisions and guidelines, available for making arrest and what the remedies are available for non-compliance of the procedure for
arrest.

Keywords: personal (individual) liberty, code of criminal procedure, 1973, arrest, guidelines for arrest

Introduction arrested in IPC cases was 39.9% (8,69,013 out of 21,77,036

“Crimes in India 2015 statistics” published by National Crime persons whose trials were completed).
Records Bureau, Ministry of Home Affairs shows that a total
of 36,36,596 persons were arrested by the police under Objectives of the paper
various IPC crimes during 2015 as against 37,90,812 persons  To analyse the legal provisions of the arrest.
in 2014, showing a decrease of 4.1%. Out of 36,36,596  To understand the procedure/circumstances for arrest.
persons arrested 2,69,663 were from the State of Tamilnadu.  To know the directions and guidelines of the arrest.
The arrest rate [1] at all-India level increased by 3.7% in 2012  To know the remedies available for non-compliance of the
over 2011 (from 259.9 in 2011 to 269.5 in 2012), 6.4% in procedure for arrest
2013 over 2012 (from 269.5 in 2012 to 286.8 in 2013), 6.2%  To give suggestions for effective implementation of the
in 2014 over 2013 (from 286.8 in 2013 to 304.7 in 2014). procedure for arrest.
However, it decreased by 5.2% in 2015 over 2014 (from
304.7 in 2014 to 288.8 in 2015). The arrest rate in the State of Arrest
Tamil Nadu is 389.9. The female persons arrested under The term “arrest” has not been defined in the Code, though
various sections of IPC crimes accounted for 4.9% (1,79,052 the process of making the arrest has been mentioned under
out of 36,36,596) of total arrestees during 2015. The section 46 of the Code. Arrest means “the apprehension of a
maximum number of arrested persons under IPC were in the person by legal authority resulting in deprivation of his
age-group of 18yrs & above-below 30 yrs. accounting for liberty”. Under Section 46, the police officer or other person
45.9% (16,72,711 out of 36,36,596 persons) of total arrestees making the arrest shall actually touch or confine the body of
followed by persons in the age group of 30 yrs. & above – the person to be arrested, unless there be a submission to the
below 45 yrs. (37.4%) (13,60,448 out of 36,36,596 persons), custody by word or action [2]. If the person to be arrested
persons in the age group of 45yrs & above – below 60 yrs. forcibly resists the endeavour to arrest him, or attempts to
(14.1%) (5,14,486 out of 36,36,596 persons) and persons in evade the arrest, the police officer or other person may use all
the age group of 60yrs and above (1.4%) (49,877 out of means necessary to effect the arrest [3]. However, this right to
36,36,596 persons). A total of 39,074 juveniles (below 18 use all necessary means for making an arrest shall not extent
yrs.) were apprehended under the IPC crimes during 2015. to cause the death of a person who is not accused of an
Out of 1,87,20,169 persons whose cases were for trial, trials offence punishable with death or with imprisonment for life
[4]
were completed in respect of 21,77,036 persons. Out of these . The bare perusal of this section shows that no formality,
disposed cases 8,69,013 persons were convicted, 12,70,936 for police officials, is necessary while arresting a person.
persons were acquitted and 37,087 persons were discharged
by different courts during the year 2015. The overall Object of arrest
conviction percentage at all India level for the persons Arrest may be necessary not only for the purpose of securing

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the attendance of the accused at the time of trial, but it may “No arrest can be made because it is lawful for the police
also become necessary as a preventive or precautionary officer to do so. The existence of the power to arrest is one
measure in respect of a person intending to commit a thing. The justification for the exercise of it is quite another.
cognizable offence [5] or a habitual offender or an ex-convict The police officer must be able to justify the arrest apart from
or a person found under suspicious circumstances [6]. his power to do so. Arrest and detention in police lock-up of a
person can cause incalculable harm to the reputation and self-
Whether mere registration of FIR in cognizable offences esteem of a person. No arrest can be made in a routine
will lead to arrest? manner on a mere allegation of commission of an offence
While answering to the question, the Hon’ble Apex Court of made against a person. It would be prudent for a police officer
India, in Lalitha Kumari Vs Govt of U.P and Ors [7], the Court in the interest of protection of the constitutional rights of a
observed that “while registration of FIR is mandatory, arrest citizen and perhaps in his own interest that no arrest should be
of the accused immediately on registration of FIR is not at all made without a reasonable satisfaction reached after some
mandatory. In fact, registration of FIR and arrest of an investigation as to the genuineness and bona fides of a
accused person are two entirely different concepts under the complaint and a reasonable belief both as to the person's
law, and there are several safeguards available against complicity and even so as to the need to effect arrest. Denying
arrest. It is not correct to say that just because FIR is a person of his liberty is a serious matter. A person is not
registered, the accused person can be arrested immediately. It liable to arrest merely on the suspicion of complicity in an
is the imaginary fear that “merely because FIR has been offence. There must be some reasonable justification in the
registered, it would require arrest of the accused and thereby opinion of the officer effecting the arrest that such arrest is
leading to loss of his reputation”, Thus, the arrest of a person necessary and justified. Except in heinous offences, an arrest
and registration of FIR are not directly and/or irreversibly must be avoided if a police officer issues notice to person to
linked and they are entirely different concepts operating attend the Station House and not to leave the Station without
under entirely different parameters. On the other hand, if a permission would do”. Accordingly certain guidelines were
police officer misuses his power of arrest, he can be tried and issued by the Apex Court for the effective enforcement the
punished under Section 166 [8]” - the Court asserted. fundamental rights.
Again in D.K Basu Vs State of West Bengal [10], the Apex
Procedural Safeguards of the arrested person: Court observed that “abuse of police power is not only
Section 41, Cr. P.C. confers powers on any police officer to peculiar to this country, but it is widespread. It has been the
arrest a person under the circumstances specified therein concern of international community because the problem is
without any order or a warrant of arrest from a universal and the challenge is almost global”. Further the
Magistrate. Section 46 provides the method and manner of Court by referring constitutional and statutory provisions
arrest. Under this Section, no formality is necessary while aimed at safeguarding the personal liberty and life of a citizen
arresting a person. Under Section 49, the police are not observed that “growing incidence of torture and deaths in
permitted to use more restraint than is necessary to prevent police custody has been a disturbing factor. Experience
the escape of the person. Section 50 enjoins every police shows that worst violations of human rights take place during
officer arresting any person without warrant to communicate the course of investigation….” Therefore after analyzing the
to him the full particulars of the offence for which he is various provisions of the Code and Constitutional provisions,
arrested and the grounds for such arrest. The police officer is eleven directions [11] was issued to be followed in all cases of
further enjoined to inform the person arrested that he is arrest or detention till legal provisions are made in that behalf
entitled to be released on bail and he may arrange for sureties as preventive measures. Further, the Apex court directed that
in the event of his arrest for a non-bailable offence. Section failure to comply with the eleven directions shall apart from
56 contains a mandatory provision requiring the police officer rendering the concerned official liable for departmental
making an arrest without warrant to produce the arrested action; also render his liable to be punished for contempt of
person before a Magistrate without unnecessary delay and court. The points to be mentioned here is most of the
Section 57 provides that the arrested person shall not be (excluding direction 8 & 9) directions were incorporated in
detained in police custody exceeding twenty four hours the Code by way of Cr.P.C (Amndt) Act, 2008 [12]. Further,
excluding the time for necessary journey from the place of Section 60A provides that “no arrest shall be made except in
Arrest to the Magistrate’s Court. There are some other accordance with the provisions of this Code or any other law
[13]
provisions also like Section 53, 53A, 54 and 167 which are for the time being in force providing for arrest”.
aimed at affording procedural safeguards to a person arrested
by the police. Authority of Handcuffing:
In Citizens For Democracy Vs State Of Assam And Ors [14],
Check on the Misuse of Power of Arrest: the Apex court directed that “handcuffs or other fetters shall
Though there are several constitutional and statutory not be forced on a prisoner - convicted or under-trial-while
provisions for safeguarding the personal liberty and life of lodged in a jail anywhere in the country or while transporting
individuals, the Apex Court of India time and again observed or in transit from one jail to another or from jail to court and
that growing incidence of torture and deaths in police custody back. The police and the jail authorities, on their own, shall
has been a worrying issue. Therefore, in order to curb the have no authority to direct the hand- cuffing of any inmate of
menace of misuse of power of arrest, in some cases, the a jail in the country or during transport from one jail to
Supreme Court of India issued several directions. In Joginder another or from jail to court and back.
Kumar vs State Of U.P [9], to curb the menace of the power of Where the police or the jail authorities have well-grounded
arrest, the Supreme Court of India held as follows: basis for drawing a strong inference that a particular prisoner
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is likely to jump jail or break out of the custody then the said  As a rule, use of force should be avoided while affecting
prisoner be produced before the Magistrate concerned and a arrest. However, in case of forcible resistance to arrest,
prayer for permission to handcuff the prisoner be made before minimum force to overcome such resistance may be used
[19]
the said Magistrate. Further, the court directed that any . However, care must be taken to ensure that injuries to
violation of any of the directions issued the Supreme Court by the person being arrested, visible or otherwise is avoided.
any rank of police in the country or member of the jail  The dignity of the person being arrested should be
establishment shall be summarily punishable under protected. Public display or parading of the person
the Contempt of Courts Act apart from other penal arrested should not be permitted at any cost.
consequences under law [15]”.  Searches of the person arrested must be done with due
respect to the dignity of the person, without force or a
National Human Rights Commission’s Guidelines aggression and with care for the person's right to privacy.
regarding arrest [16] Searches of women should only be made by other women
The National Human Rights Commission (NHRC) also issued with strict regard to decency [20].
several guidelines for making arrest of a person. The  The use of handcuffs or leg chains should be avoided and
guidelines are as follows: if at all, it should be resorted to strictly in accordance with
The guidelines issued by the NHRC are divided into three the law repeatedly explained and mandated in judgment of
categories: (i) Pre Arrest guidelines (ii) Arrest guidelines and the Supreme Court in Prem Shankar Shukla v. Delhi
(iii) Post arrest guidelines. Apart from these guidelines, it has Administration and Citizen for Democracy v. State of
also contains the mechanism for effective implementation of Assam.
these guidelines.  As far as is practicable, women police officers should be
associated where the person or persons being arrested are
Pre-arrest Guidelines women. The arrest of women between sunset and sunrise
According to the pre arrest guidelines of the NHRC, the should be avoided [21].
power to arrest without a warrant should be exercised only  Where children or juveniles are sought to be arrested, no
after a reasonable satisfaction is reached, after some force of beating should be administered under any
investigation, as to the genuineness and bonafides of a circumstances. Police officers, May for this purpose,
complaint and a reasonable belief as to both the person's associate respectable citizens so that the children or
complicity as well as the need to effect arrest. juvenile are not terrorised and minimal coercion is used.
 Arrest cannot be justified merely on the existence of  Where the arrest is without a warrant, the person arrested
power, as a matter of law, to arrest without a warrant in a has to be immediately informed of the grounds of arrest in
cognizable case. a language which he or she understands [22]. Again, for this
 After Joginder Singh's pronouncement of the Supreme purpose, the police, if necessary may take the help of
Court the question whether the power of arrest has been respectable citizens. These grounds must have already
exercised reasonably or not is clearly a justifiable one. been recorded in writing in police records. The person
 Arrest in cognisable cases may be considered justified in arrested should be shown the written reasons as well as
one or other of the following circumstances: also given a copy on demand.
 The case involves a grave offence like murder,  The arrested person can, on a request made by him or her,
dacoity, robbery, rape etc. and it is necessary to arrest demand that a friend, relative or other person known to
the suspect to prevent him from escaping for evading him be informed of the fact of his arrest and the place of
the process of law. his detention [23]. The Police should record in a register the
 The suspect is given to violent behaviour and is likely name of the person so informed.
to commit further offences.  If a person is arrested for a bailable offence, the police
 The suspect requires to be prevented from destroying officer should inform him of his entitlement to be released
evidence or interfering with witness or warning other on bail so that he may arrange for sureties.
suspects who have not yet been arrested.  Apart from informing the person arrested of the above
 The suspect is a habitual offender who, unless arrested, is rights, the police should also inform him of his rights to
likely to commit or further offences. (3rd Report of consult and be defended by a lawyer of his choice [24]. He
National Police Commission). should be informed that he is entitled to free aid at States
 Except in heinous offences, as mentioned above, an arrest expense.
must be avoided if a police officer issues notice to the  When the person arrested is brought to the police station,
person to attend the police station and not leave the station he should, if he makes a request in this regard, be given
without permission [17]. prompt medical assistance. He must be informed of his
 Police officers carrying out an arrest or interrogation right. Where the police officer finds that the arrested
should bear clear identification and name tag with person is in a condition where he is unable to make such
designations [18]. The particulars of police personnel request but is in need of medical help, he should promptly
carrying out the arrest of interrogation should be recorded arrange for the same [25]. This must also be recorded
contemporaneously in the register kept at the police contemporaneously in a register. Only a female registered
station. practitioner should examine the female requesting for
medical help [26].
Arrest Guidelines  Information regarding the arrest and the place of detention
The NHRC listed out the following guidelines for making should be communicated by the police officer effecting
arrest: the arrest without any delay to the police control room and
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District/State headquarters [27]. There must be a The Court, Further, held that “Police officers make arrest as
monitoring mechanism working round the clock. they believe that they possess the power to do so. As the
 As soon as the person is arrested, police officer effecting arrest curtails freedom, brings humiliation and casts scars
the arrest shall make a mention of the existence or non- forever, we feel differently. We believe that no arrest should
existence of any injury on the person of the arrestee in the be made only because the offence is non-bailable and
register of arrest. If any injuries are found on the person of cognizable and therefore, lawful for the police officers to do
the arrestee, full description and other particulars as to the so. The existence of the power to arrest is one thing, the
manner in which the injuries were caused should be justification for the exercise of it is quite another. Apart from
mentioned on the register. The entry shall also be signed power to arrest, the police officers must be able to justify the
by the officer and the arrestee. At the time of release of reasons thereof. No arrest can be made in a routine manner on
the arrestee, a certificate to the above effect under the a mere allegation of commission of an offence made against a
signature of the police officer shall be issued to the person. It would be prudent and wise for a police officer that
arrestee. no arrest is made without a reasonable satisfaction reached
 If the arrestee has been remanded to police custody under after some investigation as to the genuineness of the
the orders of the court, the arrestee should be subjected to allegation. Despite this legal position, the Legislature did not
medical examination by a trained Medical Officer every find any improvement. Numbers of arrest have not decreased.
48 hours during his detention in custody by a doctor on Ultimately, the Parliament had to intervene and on the
the panel of approved doctors appointed by Director, recommendation of the 177th Report of the Law Commission
Health Services of the concerned State or Union Territory submitted in the year 2001, Section 41 of the Code of
[28]
. At the time of his release from the police custody, the Criminal Procedure (for short ‘Cr.PC), in the present form
arrestee shall be medically examined and a certificate came to be enacted”.
shall be issued to him stating therein the factual position Under this section a person accused of offence punishable
of the existence or non-existence of any injuries on his with imprisonment for a term which may be less than seven
person. years or which may extend to seven years with or without
fine, cannot be arrested by the police officer only on its
Post Arrest Guidelines: satisfaction that such person had committed the offence
The NHRC also issued guidelines to be followed after punishable as aforesaid. Police officer before arrest, in such
arresting a person. The guidelines are as follows: cases has to be further satisfied that such arrest is necessary
 The person under arrest must be produced before the (i) to prevent such person from committing any further
appropriate court within twenty four hours of the arrest offence; or (ii) for proper investigation of the case; or (iii) to
[29]
. prevent the accused from causing the evidence of the offence
 The person arrested should be permitted to meet his to disappear; or (iv) tampering with such evidence in any
lawyer at any time during interrogation [30]. manner; or (v) to prevent such person from making any
 The interrogation should be conducted in a clearly inducement, threat or promise to a witness so as to dissuade
identifiable place, which has been notified for his purpose him from disclosing such facts to the Court or the police
by the government. The place must be accessible and the officer; or (vi) unless such accused person is arrested, his
relatives or friend of the person arrested must be informed presence in the court whenever required cannot be ensured.
of the place of interrogation taking place. These are the conclusions, which one may reach based on
 The methods of interrogation must be consistent with the facts.
recognised rights to life, dignity and liberty and right Law further requires the police officers to record the reasons
against torture and degrading treatment [31]. in writing for not making the arrest. Eventually, the Court
compelled to state:-
Latest Law and Judgment on Arrest: “In pith and core, the police office before arrest must put a
In Arnesh Kumar vs. State of Bihar and another [32], the question to himself, why arrest? Is it really required? What
Supreme Court of India while dealing with the concept of purpose it will serve? What object it will achieve? It is only
arrest forced to observe as follows: after these questions are addressed and one or the other
“Arrest brings humiliation, curtails freedom and cast scars conditions as enumerated above is satisfied, the power of
forever. Law makers know it so also the police. There is a arrest needs to be exercised. In fine, before arrest first the
battle between the law makers and the police and it seems that police officers should have reason to believe on the basis of
police has not learnt its lesson; the lesson implicit and information and material that the accused has committed the
embodied in the Cr. PC. It has not come out of its colonial offence. Apart from this, the police officer has to be satisfied
image despite six decades of independence, it is largely further that the arrest is necessary for one or the more
considered as a tool of harassment, oppression and surely not purposes envisaged by sub-clauses(a) to (e) of clause (1)
considered a friend of public. The need for caution in of Section 41 of Cr. PC”.
exercising the drastic power of arrest has been emphasized If the arrest effected by the police officer does not satisfy the
time and again by Courts but has not yielded desired result. requirements of Section 41 of the Code, Magistrate is duty
Power to arrest greatly contributes to its arrogance so also the bound not to authorise his further detention and release the
failure of the Magistracy to check it. Not only this, the power accused. In other words, when an accused is produced before
of arrest is one of the lucrative sources of police corruption. the Magistrate, the police officer effecting the arrest is
The attitude to arrest first and then proceed with the rest is required to furnish to the Magistrate, the facts, reasons and its
despicable. It has become a handy tool to the police officers conclusions for arrest and the Magistrate in turn is to be
who lack sensitivity or act with oblique motive”. satisfied that condition precedent for arrest under Section
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41 Cr. PC has been satisfied and it is only thereafter that he District & Sessions Judge of the concerned District, if
will authorise the detention of an accused. The Magistrate available.
before authorising detention will record its own satisfaction, v) Immediate facilities shall be provided to the Judicial
may be in brief but the said satisfaction must reflect from its Officer to communication with his family members, legal
order. advisers and Judicial Officers, including the District &
Apart from section 41, Section 41A also aimed to avoid Sessions Judge.
unnecessary arrest or threat of arrest looming large on vi) No statement of a Judicial Officer who is under arrest be
accused requires to be vitalised. Under this section in all cases recorded nor any panchnama be drawn up nor any
where the arrest of a person is not required under Section medical tests be conducted except in the presence of the
41(1), Cr. PC, the police officer is required to issue notice Legal Adviser of the Judicial Officer concerned or another
directing the accused to appear before him at a specified place Judicial Office of equal or higher rank, it' available.
and time. Law obliges such an accused to appear before the vii) There should be no handcuffing of a Judicial Officer. If,
police officer and it further mandates that if such an accused however, violent resistance to arrest is offered or there is
complies with the terms of notice he shall not be arrested, imminent need to effect physical arrest in order to avert
unless for reasons to be recorded, the police office is of the danger to life and limb, the person resisting arrest may be
opinion that the arrest is necessary. At this stage also, the over-powered and' handcuffed. In such case, immediate
condition precedent for arrest as envisaged under Section report shall be made to the District & Sessions Judge
41 Cr. PC has to be complied and shall be subject to the same concerned and also to the Chief Justice of the High Court.
scrutiny by the Magistrate as aforesaid, the Court observed. But, the burden would be on the Police to establish necessity
Finally, the Apex Court issued certain directions for not to for effecting physical arrest and handcuffing the Judicial
make any arrest automatically and mechanically. Further the Officer and if it be established that the physical arrest and
court held that “failure to comply with the directions handcuffing of the Judicial Officer was unjustified, the Police
aforesaid shall apart from rendering the police officers Officers causing or responsible for such arrest and
concerned liable for departmental action, they shall also be handcuffing would be guilty of misconduct and would also be
liable to be punished for contempt of court to be instituted personally liable for compensation and/or damages as may be
before High Court having territorial jurisdiction”. summarily determined by the High Court.
For not following the directions mentioned above, the The Court further added that, the above guidelines are not
Supreme Court of India awarded compensation for a doctor exhaustive but these are minimum safeguards which must be
and an advocate holding that their liberty was curtailed in observed in case of arrest of a judicial officer.
violation of law. Further, the Court held that when the
individual liberty is curtailed in an unlawful manner, the Suggestions and Conclusion
victim is likely to feel more anguished, agonized, shaken, i) No doubt, the Indian police have to perform a difficult and
perturbed, disillusioned and emotionally torn. It is an assault delicate task, particularly in view of the deteriorating law
on his/her identity. The said identity is sacrosanct under the and order situation, communal riots, political turmoil,
Constitution. Therefore, for curtailment of liberty, requisite terrorist activities, etc [35]., But, in order to check the
norms are to be followed [33]. misuse of the police power of arrest, we would like to
suggest the following:
Whether a Judicial Officer can be arrested by the police? ii) As pointed out by our Hon’ble Apex Court of India,
In Delhi Judicial Service Association vs. State of Gujarat [34], Transparency of action and accountability perhaps are two
the Apex Court of India observed as follows: possible safeguards. Attention is also required to be paid
“No person whatever his rank, or designation may be, is, to properly develop work culture, training and orientation
above law and he must face the penal consequences of of police force consistent with basic human values.
infraction of criminal law. A Magistrate, Judge or any other Therefore, Training methodology of the police needs
Judicial Officer is liable to criminal prosecution for an restructuring. The force needs to be infused with basic
offence like any other citizen”. But, in view of the paramount human values and made sensitive to the constitutional
necessity of preserving the independence of judiciary and at ethos.
the same time ensuring that infractions of law are properly iii) Efforts must be made to change the attitude and approach
investigated, the following seven guidelines were issued by of the police personal handling investigations so that they
the Apex Court: do not sacrifice basic human values during interrogation
i) If a judicial officer is to be arrested for some offence, it and do not resort to questionable form of interrogation.
should be done under intimation to the District Judge or iv) With a view to bring in transparency, the presence of the
the High Court as the case may be. counsel of the arrestee at some point of time during the
ii) If facts and circumstances necessitate the immediate arrest interrogation may deter the police from using third degree
of a judicial officer of the subordinate judiciary, a methods during interrogation.
technical or formal arrest may be effected. v) Moreover, the as mentioned in the “Enforcement of
iii) The facts of such arrest should be immediately Guidelines [36] (Supra note:18)” of the National Human
communicated to the District and Sessions Judge of the Rights Commission, wide spread publicity should be
concerned District and the Chief Justice of the High given to make aware of the procedure for the arrest so as
Court. to reduce the misuse of police powers on arrest.
iv) The Judicial Officer so arrested shall not be taken to a vi) Police Standing Order 622 [37] that gives wider
police station, without the prior order or directions of the discretionary power to the police officials to arrest in

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cognizable cases has to be deleted or suitably amended in 21. See also section 46 (4), ibid.
consonance with the discussion we had earlier. 22. See also Section 50, ibid.
vii) So as to arrest the misuse of power in the hands of police 23. See also Section 41–B(c) and 50-A.
personal, Apart from rendering departmental action and 24. See also Section 41-D.
contempt of court, erring police personnal has be booked 25. See also Section 53 & 54.
under the relevant penal provisions of law. 26. See also Section 53 (2) & Proviso to Section 54.
Therefore, we conclude that from the above analysis, it is 27. See also Section 41 - C
categorically clear that the power of arrest has been arrested 28. See also Section 55-A.
by the judicial pronouncements and by the Code of Criminal 29. See also Section 57 & Article 22 (2) of the Indian
Procedure, 1973, as amended in 2008. If any police official Constitution.
ignoring the above provisions and guidelines discussed above, 30. See also section 41 – D & Article 22 (1), ibid.
arrests any person then the affected person should be awarded 31. See Article 21 of Indian Constitution & see also ICCPR,
compensation, apart from rendering the erring officials 1996 & UDHR, 1948 & Human Rights Act, 1993.
departmental action, contempt proceedings and penal action. 32. (2014) 8 SCC 273.
33. Dr. Rini Johar & Anr. Vs State of M.P. & Ors. Writ
References Petition (Criminal) NO. 30 of 2015, Date of Judgment:
1. Arrest Rate means number of persons arrested under IPC June 03, 2016
crimes per 1,00,000 population. 34. Equivalent citations: 1991 AIR 2176, 1991 SCR (3) 936.
2. Section 46 (1). 35. For more information see: D.K.Basu Vs Sate of West
3. Section 46 (2). Bengal (Supra Note - 12).
4. Section 46 (3). 36. For enforcement guidelines see the Supra Note: 18
5. Cognizable offence” mean an offence for which, a police website.
officer may arrest without warrant. See Section 2 (c). 37. PSO 622 Read as follows: Discretion to arrest in
6. See: Sections 151, 41 (2) r/w Ss.110, 41 (1) (h), 41 cognizable case: A Police Officer has discretion whether,
(1)(b), 41 (1)(ba) and (d) – Taken from R.V. Kelkar’s or not, to arrest a person of his own motion, in a
Criminal Procedure, By, Dr. K.N. Chandrasekharan cognizable case and in instances where the position of the
Pillai, EBC, 6th Edi, 2014, P.48. accused person and the nature of the charge against him
7. (2014) 2 SCC 1. This is the latest verdict by the Hon’ble render his arrest without warrant an unjustifiable
Apex Court of India in which the Court directed and hardship, application should be made to the magistrate to
declared that when a complaint is lodged disclosing the issue a process for his appearance.
commission of cognizable offence, the registration of
F.I.R is mandatory. Exception is also available. For
details, see the Judgment.
8. Section 166 of IPC says “Public servant disobeying law,
with intent to cause injury to any person. – Whoever,
being a public servant, knowingly disobeys any direction
of the law as to the way in which he is to conduct himself
as such public servant, intending to cause, or knowing it
to be likely that he will, by such disobedience, cause
injury to any person, shall be punished with simple
imprisonment for a term which may extend to one year or
with fine, or with both.
9. Equivalent citations: 1994 AIR 1349, 1994 SCC (4) 260.
10. (1997) 1 SCC 216.
11. For details of the directions see D.K. Basu’s Case.
12. See Sections 41 (B) (a),(b),(c) 50A (1),(2),(3), 54, 41(D)
and 41 (C).
13. Under Article 141 of the Indian Constitution, the Law
declared by the Supreme Court of India is binding. Also
see Article 144.
14. AIR 1996 SC 2193.
15. See also: Prem Shankar Shukla v. Delhi Administration,
[1980] 3 SCR 855, Sunil Batra Etc. v. Delhi
Administration and Ors. Etc., [1979] 1 SCR 392.
16. Available at: http://nhrc.nic.in/Documents/sec-3.pdf. Last
visited on 21.12.2016. Also see: Badru Ram and Ors. vs
State Of Rajasthan: RLW 2006 (4) Raj 3110, 2006 (4)
WLC 734.
17. Section 41-A.
18. See Section 41-B (a) of Cr.P.C.
19. See also Section 46 (2), ibid.
20. See also Section 51 (2), ibid.
6
International Journal of Law

International Journal of Law

ISSN: 2455-2194, RJIF 5.12
www.lawresearchjournal.com
Volume 3; Issue 1; January 2017; Page No. 07-09

Computer devices have changed the concept of the crime of property larceny
Khasan Ochilov
Independent researcher of department Criminology and criminal law at Tashkent state university of law, Uzbekistan

Abstract
The concept of crimes involving theft of another's property with the use of computer technology, corpus delicti analyze, object,
objective side, subject, subjective side, distinction from other similar crimes.

Keywords: computer devices, theft of another's property, use of computer technology crimes

Introduction Nowadays, one of the aspects of computer crime in legal

In recent years, in mass media we often face with term literature [4] takes special place: this is a group of computer
"computer crimes". Of course, this is not surprising. crimes at the same time an instrument of a crime and subject
Nowadays, it is hard to imagine any industry - media, to criminal (or tool) to perform the function. However, this
communications, trade, industry, banking, stock exchange type of computer crime is not proper for the larceny of others'
operations, public administration and others, without property by using computer devices. Larceny of others'
computers. property by using computer devices in accordance with the
Currently, all the important functions of the society related to subject of criminal offenses, the electronic lists of non-cash
the computer and computer networks. Computer technology money of account and the computer is only an instrument of a
has become an integral part of today's society, its great crime that is also important.
contribution to the development of society, with the For deeper understanding the nature of larceny of others'
development of the global economy and the rapid integration property using a computer crime we need to identify the
of the countries of the world community led to the formation "robbery, larceny" concept.
of negative term such as "computer crimes". In European countries (France, Germany and Spain) and the
Today, the lack of a perfect mechanism in the legal system United States there are different approaches to the concept of
and the fight against computer crime creates difficulties in the existing Criminal Code Pillage [5].
current situation [1]. The role of computer information systems The meaning of larceny of property so that the victim illegally
in society, increasing the scale of the use and processing, deprived a certain amount of material wealth or rights for
increasing the number of global Internet users maintaining them.
computer networks and government is actively considering M.H.Rustamboev notes that "larceny is - looted property to
entering these systems and the protection of information on the benefit of others, larceny, and other parties to put illegal
criminal offenses actual problems. and free." [6] The same meaning given by E.S. Tenchov [7] and
In general, one of the reasons for increase in crime regularly by A.I. Rarog [8].
as a result of the crime, including the amount of money: at the R.Kabulov notes that "Pillage is another property owner or
same time damage from the bank larceny in developed the owner of the property possession for personal benefit or
countries amounted about 19 thousand US dollars, while for others, free of charge, malicious, illegal and intentionally
damage from computer criminal on average amounted 560 possessed, and as a result the owner gets material damage [9]
thousand US dollars? In general, researchers have a wide ".
range of opinion and comments regarding the study of V.V.Veklenko, S.S.Niyozova, A.K.Irkaxadjaev and
computer crime as a part of crime [2]. E.O.Alauxanov [10] think about the important and unique
For example, Yu. M. Baturin says that "computer criminal in among the mercenary purposes, the right to return to the
the legal aspect of crime does not exist as a separate group, method with the condition that the accused or other parties,
but a lot of traditional crimes are modified by including such as the damage to the owner.
computer equipment, so we can talk about the aspects related Sh.Yo.Abduqodirov and U.M.Mirzaev [11] talked about the
to computer crime without dividing them into special groups" larceny of property of others through using a computer,
[3]
. estimated this type of crime as "using and taking others
We also expressed this view, the contents of the computer properties for the benefit of them and others through the
crime, which covers a wide range of crimes. Larceny theft of illegal use of computer and free focus”.
others property takes a special space among computer crime. However, the above-described definitions do not reveal the
Larceny of others' property by using computer devices is full contents of larceny. For all types of larceny will not be
characterized by a number of specific features in the able to commit the use of computer tools and in all cases, the
computer crime system. First of all, we need to mention some computer tool as a separate element of an offense is incorrect.
differences of crime system. Thus, the computer larceny definition Pillage what computer

7
International Journal of Law

types carried out using the methods described in the stories computer fraud as "to trick the computer tool" to represent or
can be enhanced computer Pillage think it would be more assessing computer as the victim of the system is wrong.
correct. In particular, the issue of December 21, 2001, the Plenum of
Larceny committed using computer technology for above the Supreme Court of the Republic of Belarus "Larceny of
unique feature, however, this type of crime is characterized property on the application of the criminal law and judicial
by a number of peculiarities. practice" law approach [14] is appropriate, in our opinion. Its
Firstly, the offense of Larceny of others' property by using a content is regarding "Larceny committed using computer
computer according to the subject of crime in electronic form, technology can only be done through computer manipulation,
in cash (non-cash) and cash money from the special account the victim or the person entrusted with the property being lied
in the form of digital or non-cash means of plastic cards; through using the information processing system will be
Secondly, Larceny of others' property by using a computer demonstrated."
radically differs from the other Larceny crimes depending on However, if to analyze the norms of the criminal laws in
the recipe. That is, a) the subject of a criminal attack to the many foreign countries, "computer fraud" responsibility given
identity (in the form of information may have property, in many norms concepts as "abuse of trust" and "deception"
weapons that can be used by means of a computer (program), were not used. In other words, without setting connection
instead using the damage); between the fraud and computer fraud, computer fraud is
Thirdly, as this crime happens in cyber environment, the widely defined as computer pillage a consensus without any
person who committed the crime is often not defined or a proof. This situation can be met criminal laws of many
high level of latency of the offense is followed. European countries (for example, Germany, Austria, Sweden,
Fourthly, the opportunity of performing the illegal action in a Denmark).
certain distance, speed of crime performance and opportunity In recent years, various lawyers are offering to fill in the
to hide the name of those who performed crime, as well as criminal law with law about "computer fraud". For example,
damages to the victim, which can be very high; D.A. Zykov [15] and S.D. Brajniklar [16] offered to include
Fifthly, this special knowledge of the crimes in the field of special law about computer fraud into criminal law. However,
information and communication technologies is almost law about computer fraud cannot be added. Indeed, the use of
impossible to open and expose; the criminal law of each term should be clear, to apply to all
Sixthly, any person as a victim of this crime, but as a legal legal acts in one meaning, ambiguous and vague terms should
entity, bank or credit institutions and bank accounts of be avoided. The researchers used "deception and abuse of
physical and legal entities will be shown; trust" terms cannot be related to computer systems, because
Larceny of others' property, using a computer today, the there are no signs of intelligent and free, and it creates
scope of the scope of the crime of plunder, using a computer obstacles to call it as "based on deception, voluntarily
or any other property crimes also discussed the issue of the surrendered victim".
crime of larceny. Of the existing criminal law, using a Also it should be noted that, that this acts as a computer is
computer, embezzlement, fraud, theft and liability are used as a medium of a crime in cyberspace is necessary to
available and provided. distinguish from fraud. Today, one of the popular movements
A.V.Raspopova, wrote about it, "Larceny of others' property, of people cheating is the auction web. At the same time,
using a computer, mainly clearly shown in theft, fraud, setting communicating tool with the victim of computer, the
embezzlement or extortion, or cause damage to property by environment is seen as an alternative to the normal
deception or abuse of trust, illegal business, commercial, environment. Web sites allows not to communicate directly
illegal possession of tax or banking secrecy and disclosure of with the victim of the violation, it is difficult to assess the
credit card fraud is evident in the crimes [12]." personality of the criminal, helps to ensure the safety of its
We cannot join the opinion of the author. The reason, services.
mentioned by the researchers, fraud, deception or abuse of Some researchers thank that, "such acts are not committed by
trust by way of damage to property, illegal business, changing the computer data in violation of the law, in other
commercial, financial or banking secrecy and disclosure of words, the relations in the field of information security are not
illegal possession of a fake credit card according to the nature raped and robbery, and because of that larceny is not a cause
and content of such acts is not included into pillage of the of such manipulation, such acts are appropriate to traditional
property of others, and accordingly larceny, using a fraud and does not cause criminal law to be qualified with
computers in pillage cannot be assessed. other norm of criminal law [17]”.
One type of larceny of others' property by using a computer is In our view, larceny property through fraud, by using a
computer fraud and learning it is plays important role. computer does not require qualification. After all, this is a
"Computer fraud" occurred in the 70 years of the last century. sign of criminals, even though fraud is performed through
If to talk about computer fraud, in the content of its lawyers, computer information technologies, but the computer is not
who can be seen to interpret computer fraud in different ways. an instrument of a crime, but because it a tool of
In particular, T.Tropina defines "computer fraud" as it does communication (relation), calling it as computer fraud is
not lies to people, indeed it “lies” to computer systems. The denied. When the data stored in the computer information
author notes that, with regard to computer crime, "fraud" in system of the computer as a tool by the modification of the
the traditional sense of the meaning of these concepts is deception carried out and as a result, the property larceny, in
different concept. She says that, in essence, to obtain this case, making qualification of this act as computer fraud is
information illegally, and so on, the computer system of right.
"cheating" [13] is carried out. However, in our view, the cases Taking into account the above comments, larceny of others’
of computer fraud are debatable. Researchers’ assessing property through using a computer is understood as, the right
8
International Journal of Law

to property or proprietary computer using the computer 12. AV. Raspopov Organizational-methodical maintenance
information system, through the modification of data in of an initial stage of investigation of crimes committed in
violation of the law intentionally, freely and without the economic sphere with the use of computer
condition. technology. Author. diss.kand. jurid. Sciences. M. 2007;
Moreover, larceny by using the computer should be given p. 3.
criminal responsibility, norms, reasons are following: first, 13. Tropina T. Computer fraud: questions of qualification
the crime of larceny of others' property, using a computer is and legislative technique. // www.crime.vl.ru
spreading rapidly across the world in recent years, increasing 14. Web recurs: www.lawbelarus.com/repub/sub13/
the potential risk; Second, larceny of the property of others, texc5747.htm
using a computer crime, in many cases, will not be reflected 15. DA. Zykov The concept of computer fraud. www.crime-
in the official statistics, in other words, this type of crime is research.org
defined with high latency, based on official figures suggests 16. Brajnik F. Plurality of crimes - a reflection of their total
not to diminish the fight against crimes of this type; Third, public danger // Criminal Law. 2000; 3:10.
larceny of the property of others through computer 17. Tropina TL. Cybercrime: the concept, the state, the
technologies crime differs from the simple crime of larceny, criminal legal methods of struggle. Author. diss. Cand.
this requires right qualification in compliance with the jurid. Sciences. M. 2005; p. 21-23.
purpose of determining the responsibility.

References
1. Baranov O. digital zakonodalstvom // Dzerkalo tizhnya. -
chervnya 2002; 20(395):1-7.
2. Tropina TL Cybercrime: the concept, the state, the
criminal legal methods of struggle .. Author. diss. for the
degree of Cand. jurid. Sciences. - Vladivostok, 2005;
p.12.
3. Baturin YM Problems of computer law.- M .: jurid. lit.,
1991; p. 27.
4. Naumov V. Domestic legislation in the fight against
computer crime. // Computer World Russia. 1997; 8:31.
5. The new Penal Code France / scientific. Ed. NF
Kuznetsova, EF Pobegailo. Moscow, 1993.; The
Criminal Code of Spain / ed. NF Kuznetsova, FM
Reshetnikov. M., 1998.; German Criminal Code. M.,
1998.; The Criminal Code of the State of New York. §
10.00, paragraph 11, 12, 13 // The criminal law of foreign
countries:. Proc. legislative materials / ed. ID Kozochkin.
M., 1998.
6. Criminal law. Special part. Text book. Authors
collective. – Тashkent: ТSIL, 2000; p. 196.
7. Criminal law of Russia. Special part. Textbook. / Ed. Ed.
LL Kruglik. - 3rd Ed. - M .: Wolters Kluwer, 2005, p.
203.
8. Criminal Law of the Russian Federation. Special part:
Textbook / Ed. prof. B.V. Zdravomyslova. - Ed. 2nd. - M
.: Lawyer, 1999; p.141.
9. Kaboulov R. Criminal legal fight against theft: Theory
and Practice. Diss. Doctor. jurid. Sciences.- Tashkent,
1997; p. 22.
10. Veklenko VV. The process of qualification // Legal theft
technology. 2001; 10:35. Ниёзова С.С. Ўзгалар
мулкини иштирокчиликда талон–торож қилганлик
учун жиноий жавобгарлик муаммолари. Юрид. фан.
номз. ... дисс. – Тошкент: ТДЮИ, 2006. – Б.15–16;
Irkohadzhaev AK The subjective aspect of property theft,
committed by fraud. // Criminal law measures to combat
crime. - Tashkent: Fan, 1987. - P. 25; Alauhanov E.O.
Qualifications theft committed with false documents /
Ed. Ed. prof. G.A.Ahmedov.- Almaty- Tashkent, Adolat.
1994; p.12.
11. Абдуқодиров Ш.Ё., Мирзаев У.М. Мулкни талон-
торож қилганлик учун жиноий жавобгарлик. –
Тошкент. ТДЮИ, 2009; Б. 7.
9
International Journal of Law

International Journal of Law

ISSN: 2455-2194, RJIF 5.12
www.lawresearchjournal.com
Volume 3; Issue 1; January 2017; Page No. 10-11

Registration of first information report vis-a-vis the powers of the court: A study
Dr. Mukund Sarda
Prof., Principal & Dean, Bharati Vidya Peeth University, New Law College, Pune, Maharashtra, India

Abstract
The scope of the powers of the court under Section 156 (3) of Criminal Procedure Code has been studied in depth. Specific or
unproperly worded prayer or lack of complete details will not be fatal to maintainability of a petition. A complaint against public
servants, sanction of competent authority is required for registration of a case against them. The guidelines in Priyanka Srivastava’s
case has been summarised for the proper application of Sec 1556 (3) of Cr PC. A good account is given about the recommendations
of the study and in paritucular, the magistrate may require the filing of affidavit’s in order to ascertain the truth of the complaint,
before the magistrate exercises the power to direct registration of FIR.

Keywords: pre cognizable, sanction for prosecution for public servant, reproduction of factual allegations, complaint to
accompany affidavits, priyanka srivastava guidelines

1. Introduction Stressing the need for application of mind by the magistrate,

Section 156(3) of the Criminal Procedure Code, which he cannot refer the matter under Sec 156(3) Cr Pc against
operates at the pre-cognizable stage, confers powers on a public servants for acts done in the discharge of their duties
magistrate, who is empowered to take cognizance under Sec without a valid sanction order [8]. It was further laid down in
190 of Criminal Procedure Code, to order investigation into the case [9] thus:-
any cognizable case. In Panchabhai Popatbhai Bhutani & a) The application of the mind by the magistrate should be
Others [1] the Supreme Court ruled: “A petition under Section reflected in the order;
156(3) cannot be strictly construed as a compliant in terms of b) The mere statement that he has gone through the
Sec 2(d) of the code and absence of a specific or improperly complaint, documents and heard the complaint, as such, as
worded prayer or lack of complete and definite details would reflected in the order will not be sufficient;
not prove fatal to a petition under sec 156(3) in so far as it c) After going through the complaint, documents and hearing
states facts constituting ingredients of a cognizable offence. the complainant, what weighed with the magistrate to
Such petition would be maintainable before the magistrate”. order investigation under Sec 156(3) of Cr Pc should be
reflected in the order, through a detailed expression of his
2. Text of the article views is neither required nor warranted.
In a case, where the petitioners were public servants and an
FIR against them for acts in the discharge of duties without 4. Priyanka Srivastava guidelines
the sanction of appropriate authority, whether the magistrate In Priyanka Srivastava’s case [10] the Supreme Court laid
can give a direction to register an FIR against them came up down a detailed guidelines on this crucial issue under Sec
for consideration before the Supreme Court [2]. Basing on an 156(3) of Cr Pc which can be summarised thus:-
earlier decision in Anil Kumar’s case [3], it was held that the i) The magistrate has to remain vigilant with regard to the
magistrate could not have passed the order for registration of allegations made and the nature of allegations and not to
FIR without sanction by the appropriate authority. Earlier issue directions without proper application of mind;
case-laws were relied upon [4]. No such sanction is necessary, ii) He may have to bear in mind that sending the matter
in case of persons, who are not public servants [5]. would be conducive to justice and then he may pass the
requisite order;
3. Scope of Sec 156 (3) Cr PC iii) Power under Sec 156(3) Cr Pc warrants application of
The scope of Sec 156(3) of the Criminal Procedure Code has judicial mind;
been explained and detailed by the Supreme Court [6] thus:- iv) A court of law is involved;
i) It is well settled that the law neither prescribes any v) It is not the police taking steps at the stage of Section
particular format for application under Sec 156(3) Cr Pc [7] 154 of Cr Pc;
nor contemplates verbatim reproduction of the factual vi) A litigant at his own whim and fancy cannot invoke the
allegations or all the ingredients of the alleged offence; authority of the magistrate;
ii) Nevertheless, it is imperative that the application under vii) A principled and really grieved citizen with clear hands
Section 156(3) should contain facts disclosing cognizable must have free access to invoke the said power;
offence; viii) It protects the citizen but when pervert litigants takes
iii) Failure on the part of the Police to exercise powers under this route to harass the fellow citizens, efforts are to be
Section 154 Cr pc despite intimation; made to scuttle and curb the same.
iv) Thereupon the magistrate exercising powers under Section ix) A stage has come to this Country, where Sec 156(3) Cr
156(3) Cr Pc to order investigation of the crime. Pc applications are to be supported by an affidavit duly
10
International Journal of Law

sworn by the applicant who seeks the invocation of the ii) Magistrates, while passing orders, act by the application
jurisdiction of the magistrate; of mind which should be reflected in the order;
x) In appropriate cases, the magistrate would be well iii) Cr Pc be amended to provide that applications under Sec
advised to verify the truth and also can verify the 156(3) be accompanied by a sworn affidavit to make
veracity of the allegations; complainants responsible;
xi) The affidavit can make the applicant more responsible; iv) Instead of ordering the police to register FIR, magistrates
xii) Such kind of applications are filed in a routine manner may order preliminary enquiry by the police to ascertain
without taking any responsibility whatsoever, only to the truthfulness and genuineness of complaints.
harass certain persons; v) In cases involving public servants magistrates should not
xiii) It becomes disturbing and alarming when one tries to pass orders directing FIR to be registered, unless a valid
pick up people, who are passing orders under a statutory sanction under Section 197(1) is produced by the
duty, which can be challenged under the said Act or prosecution;
under Art 226 of the Constitution; vi) In regard to complaint against police officers for
xiv) It cannot be done to take undue advantage in a criminal registering FIR, detailed scrutiny be made regarding
court, as if somebody is determined to settle the scores; genuineness of the complaint before registering the case
xv) The warrant for giving a direction that an application so that vexatious prosecutions are averted;
under Sec 156(1) Cr Pc be supported by an affidavit so vii) Magistrates must send only deserving cases for police
that the person making the application shall be investigation.
conscious and also endeavour to see that no false
affidavit is made; 7. References
xvi) If the affidavit is found to be false, he will be liable for 1. Panchabhai Popatbhai Bhutani & Others Vs. State of
prosecution in accordance with law; Maharashtra All MR (Cri), 2010, 244.
xvii) Prosecution will deter him to casually invoke the 2. Rizwan Ahmed Javed Shaik Vs. Jamal Patel AIR SC.
authority of the magistrate under Section 156(3) Cr Pc; 2001, 2198.
xviii) Veracity can also be verified regarding the nature of 3. Anil Kumar Vs. M.K. Aiyappa AIR SC, 2014, 1801.
the allegations of the case; 4. Matajog Dubey Vs. H.C Bhandari AIR. SC 1956, 144;
xix) In a number of cases pertaining to sphere of fiscal Nandram Agarwal Vs. S.C. Bihari AIR SC (1956) P.044;
nature, medical negligence and others criminal Om Prakash & Others Vs. State of Jharkhand (2012) 12
prosecutions are filed; SCC P.72; Sankaran Moitra Vs. Sadha Das AIR 2006 SC
xx) The magistrate is also aware of the delay in lodging FIR. 1597.
In cases, where the allegations are made in a petition under 5. Sanction is contemplated only in the case of public
Sec 156(3) of Cr Pc who are public servants and the acts done servants for acts done in the discharge of duties under sec
in the discharge of duties, magistrate cannot given any 197 of the Criminal Procedure Code. See for details
direction to register FIR without a valid sanction from the Fakhru-Zamma and Nagaraj AIR 1964 SC P.269, AIR
appropriate authorities [11]. 2014 SC 1550.
6. Phandharinath Narayan Patil Vs. State of Maharashtra Cr
5. Unwarranted Criminal Prosecution LJ, Bombay HC, 2016, 146.
The Supreme Court deprecated the practice of subjecting 7. Cr Pc refers to Criminal Procedure Code throughout this
police officers to unwarranted criminal prosecution when the study.
court observed: [12] Subjecting police officers to unwarranted 8. See Note 3.
criminal prosecution for having registered a case will 9. Ibid.
certainly peril the fair investigation of the said crime. 10. Priyanka Srivatsava Vs. State of UP AIR SC, 2015, 1758.
Allowing the aggrieved and disgruntled persons to hold the 11. State of UP Vs. Parasnath Singh, AIR 2009 SC P.1615.
police machinery at ransom by unjustifiable vexatious See also Subramanya Swami Vs. Man Mohan Singh AIR
prosecutions will affect the morale and effective functioning Sc, 2012, 1185.
of the police machinery which in turn will have serious and 12. See Note 6 Para 33.
far-reaching adverse impact on the interests of the society. 13. AIR 2014 SC P.187.
It is worthwhile to follow the principle laid down by the
Supreme Court in Lalitha Kumari Vs. Government of UP [13]
which stipulates that the police must conduct a preliminary
inquiry in certain cases to ascertain whether the information
reveals the commission of a cognizable offence. This
procedure will weed out frivolous and vexatious compliant.
The magistrate will be able to send only deserving cases for
investigation by the police.

6. Conclusions & Recommendations

In conclusion, it may be suggested as follows:-
i) Magistrates acting under Sec 156(3) Cr Pc will be
competent to order registration of the case (FIR) and the
investigation that follows.

11
International Journal of Law

International Journal of Law

ISSN: 2455-2194, RJIF 5.12
www.lawresearchjournal.com
Volume 3; Issue 1; January 2017; Page No. 12-16

WMD under Islamic International Law

Jaber Seyvanizad
Young Researchers and Elite Club, Urmia Branch, Islamic Azad University, Urmia, Iran

Abstract
After the appearance of WMD in twentieth century, nothing could fundamentally jeopardize the human life as much as the
weapons of mass destruction. The weapons that have this potential to completely destruct our planet for numerous times. Even
though there are some limiting rules concerning WMD usage under the current international law which is mostly manifested in the
framework of Non Proliferation Treaty, according to advisory opinion of International Court of Justice on 8July 1996, there is no
any certainty on illegality of threat or use of nuclear weapon in international law sources. On contrary, the legal regime governing
on WMD under Islamic international law prescribes the different prescription. Through the descriptive approach, this article
attempts to extract the precise position of Islamic international law concerning the issue of WMD. Results are indicating that there
is a definitive prohibition on WMD utilization, insofar as all noted Islamic scholars including Shias and Sunnis have consensus on
its proscription.

Keywords: WMD, international Islamic law, Quran, hadiths, Islamic scholars

1. Introduction A nuclear weapon is different from conventional weapons;

Regardless of the time of war or peace, Islam has a clear destructs environment and also has destructive effects on
approach towards WMD. Every Muslim combatant is human life, human genetic and generation. Today, after years
committed to target just his enemy. According to 190 verse of of Hiroshima nuclear explosion, it can be seen that its
Baqareh chapter of Quran, God has required Muslim to battle disastrous effect has still remained, and now we know that
just with militants and prohibit them from trespassing and when uranium is used even in a weakened scale, it has lots of
killing civilians. All Shia and Sunni Scholars have consensus destructive effects, and generally the production of these
on prohibition of war against civilians. Regarding the nature weapons jeopardizes the international security. Hence,
of WMD, destruction of civilians including, innocent people consideration of the human and moral principles in
and environment in case of WMD utilization is unavoidable. production of weapons -that is, how much destructive weapon
With regard to the same results of WMD utilization in present can be produced? - are the issues that must be scrutinized by
time and used weapons in Early Islam, it can be definitely Faqih in issuance of Fatwa.
concluded that the WMD usage is permanently forbidden For the issuance of a Fatwa, a Mujtahid first must seek
under the Islamic law. For example in Early Islam Prophet Ijtidadi reason to determine related rule governing on the
has prohibited the combatant from cutting and burning the subject, and in case of lack of Ijtihadi reason, and emergence
enemies’ trees and farms. We know that the minimum of doubt has to seek the Fiqahati reason including the
damage of WMD usage- even for testing –is imposing the principles: Isteshab, Baraat, Ihtiyat and Takhyeer (Sheikhe
irreparable harms to environment such as destruction of farms Ansari, 1989, p315). The issue of banning the use of nuclear
and burning trees and harvests. Exactly there is the same story weapons in terms of abundance of banning reasons in Islamic
about the chemical weapon usage at present and poisoning the texts including: Quran, Hadiths, Sunnah and Consensus
enemies’ waters in Early Islam. According to the authentic indicating the expressions of the infallible Imams, the subject
sources- which will be broadly mentioned in the next parts- has the verbal frequency in the sources i.e. there are too many
there was a definitive banning on enemies waters poisoning, reasons in the religious school of Sunnis and Shias
because it can remarkably harm civilians on one side, and collectively indicating the prohibition of the use of nuclear
about the militants, its usage is unfair and accordingly weapon. In this section a great number of those reasons will
forbidden. Presenting the Islamic prescriptions on WMD, this be analyzed and there is no any need to present the Fiqahati
article tires to extract the tenets of Islamic law from the first- principle and reasons.
handed sources emanating from the leading scholars works. Of course, having the power and enjoyment of divine
In order to make religious inferences of the rule about the possibilities in case of non-violating someone’s right is
utilization of nuclear weapon, a Faqih must give priority to permitted, and too much evidence indicate its permission
recognition of subject (Nuclear weapon). Because if someone under the tenets derived from Quran, Hadiths and Reason,
doesn't know what a nuclear bomb is, how its destructive like the verse stating: “He it is Who created for you all that is
effects are, what its radius of the adverse and disastrous on earth. Then He Istawa (rose over) towards the heaven and
influences in length and width of human life is, what effects made them seven heavens and He is the All-Knower of
will it have on the next generations, and how many people everything” (Baqarah, 28). The energy resources are for all
annihilate in the time of explosion; basically cannot deduce human beings and this is the right of nations to utilize these
and present a correct result from Islamic sources. God-given blessings, and in this respect, no one has to be
12
International Journal of Law

allowed by the other one. Also the other verses state that: well as fighting their own people. Had Allah willed,
“And surely, we gave you authority on the earth and indeed He would have given them power over you, and
appointed for you therein provisions (for your life). Little they would have fought you. So if they withdraw from you,
thanks do you give” (A'raf, 10) or “And has subjected to you and fight not against you, and offer you peace, then Allah
all that is in the heavens and all that is in the earth; it is all as has opened no way for you against them” (Nisa', 90)
a favour and kindness from Him. Verily, in it are signs for a expressing after ceasefire, Muslims do not have the right
people who think deeply “(Jathiya, 13). to refight against their enemy and take some concessions,
The issue of equipping a weapon for defending the country is hence when taking concessions from the enemy is invalid,
rationally and religiously indispensable, and on this basis how is it possible to kill innocent civilians who never
Imam Khomeini considers it as a state task (Khomeini, 1983, interfered in war?
23) and this Khomeini's view is supported by many Islamic 4. The verse that prohibits killing innocents; “and kill not
tenets. For example based on the verse stating: “And make anyone whom Allah has forbidden, except for a just
ready against them all you can of power, including steeds of cause” (An'am, 151).
war to threaten the enemy of Allah and your enemy, and 5. The verse expressing the proportionality in punishments;
others besides whom, you may not know but whom Allah does "The sacred month is for the sacred month, and for the
know” (Anfal, 60). All Muslims must appear powerful before prohibited things, there is the Law of Equality (Qisas).
enemies, but the content of this verse must be scrutinized to Then whoever transgresses the prohibition against you,
be specified on its limits. The purpose of having weapons is you transgress likewise against him. And fear Allah, and
creating fear among the enemies and this is the subject of the know that Allah is with Al-Muttaqun (the pious)"
aforementioned verse. The verse has not stated you can use (Baqarah, 194).
any evilness and rascality to threaten your enemy. When we 6. The verse forbidding the committing evils; “he commands
proved nuclear weapon is not from instances of power, rather them for Al-Ma'ruf (i.e. Islamic Monotheism and all that
instances of evilness and brutality, it does not turn to talk of Islam has ordained); and forbids them from Al-Munkar
having it. Such things like having nuclear, biological and (i.e. disbelief, polytheism of all kinds, and all that Islam
chemical weapons are out of instances of this verse. has forbidden)” (A'raf, 157). The clear example of “evil”
In Hadiths and under the Sunnah, emphasis on equipment and which has been prohibited in verses and Hadiths
having science and power in favor of peaceful and divine obviously can be this one, and if supposed to be examples
purposes is because of encouraging them (enemies) to give up for “forbidding the evil”, this one is definitely one of
their evilness. Human is perfectionist inherently and them.
enjoyment of material powers can be defined under this 7. The verse emphasizing on criminal justice and referring to
process. Hence, enjoying the peaceful nuclear energy under principle of distinction; “And fight in the Way of Allah
the international law provisions is legal and permitted. those who fight you, but transgress not the limits. Truly,
Allah likes not the transgressors” (Baqarah, 190)
1.2 The Reasons Study of Prohibition on WMD Use
1.2.1 Quran 1.2.1.1 The Implication of the Verse of E’tedah on
1. The verses indicate the prohibition of homicide, such as:” Banning the Use of nuclear weapons
Because of that We ordained for the Children of Israel The verse 190 the Sura of Baqarah is one of the most
that if anyone killed a person not in retaliation of murder, significant verses related to the prohibition of WMD use,
or (and) to spread mischief in the land - it would be as if because some principles and general rules of war are
he killed all mankind, and if anyone saved a life, it would extractable by it, including:
be as if he saved the life of all mankind” (Ma'idah, 32) and
“No person earns any (sin) except against himself (only), A) Principle of Proportionality in War Armaments
and no bearer of burdens shall bear the burden of When your enemy utilizes some strong or weak weapon, the
another”. (An'am, 164) The first verse indicates killing an opposite side must react proportionately, not utilize a very
innocent one before divine system is considered as killing stronger weapon. But in retaliation against the nuclear
all humans, so absolutely killing inhabitants of a city or weapon there is nothing for defending, and in case of
country in which live many innocents is very heinous act retaliation the human generations will be jeopardized and will
before God. The second verse indicates no one must be have many irreparable damages permanently.
victimized by other one’s sin and everybody is responsible
for his behaviors. b) The Principle of Distinction between Civilians and
2. The verse introduces the destruction of generations and Combatants
cities as the clear instants of corruption on the earth which The distinction between civilians and combatants includes:
is the minimum damage of nuclear armaments; "And when children, women, elderlies, patients, wounded, service
he turns away (from you "O Muhammad "), his effort in powers, animals, trees, farms and generally environment.
the land is to make mischief therein and to destroy the Based on this verse, the use of any weapon that is the instance
crops and the cattle, and Allah likes not mischief" of transgress is a major sin and forbidden in Islam. Likewise,
(Baqarah, 205) the extension of war beyond the war zone that causes the
3. The verse that prohibits the absolute domination on harassment, even if for animals and environment is a major
atheists; “Except those who join a group, between you and sin. Because it seems that the proscription in "E'tedah verse"
whom there is a treaty (of peace), or those who approach is unconditional and includes any transgression, even about
you with their breasts restraining from fighting you as the environment.

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International Journal of Law

1.2.1.2 Comments of the Qur'an Commentators that: “When Prophet chooses a commandant for war
Fortunately, lots of Islamic commentators such as Sunnis and always advise him on observing the divine piety toward
Shias, in addition to what was mentioned about the Islamic himself and the other soldiers and then say fight in the
prohibition concerning the use of weapons of mass name of God and on behalf of God and only kill people
destruction, have very useful and great comments, some of who are atheist but fulfill your obligation and do not
which were mentioned: overdo and do not kill children and do not dismember”.
1. Ayatollah Tabatabai believes that the prohibition of war (Al Termezi, 1983, p86) [8].
extension beyond the war zone is unconditional and Each of the following principles which have been extracted
includes all children and elderlies (Tabatabai, 1955, p87) from Quranic sources, can be argued for expressing the legal
[1]
about the samples of "E'tedah verse" he expresses: if a fundamentals of the use prohibition of unconventional nuclear
war starts before the conciliation proposal, such war is and biological armaments:
religiously forbidden because it is the clear instance of the 1) Prohibition of action battle with the intention of revenge
transgression. and bleeding
2. Ayatollah Makaram states: based on the verse, in addition 2) Prohibition of the beginning war before ultimatum and
to the prohibition of war extension beyond the war zone, inviting to conciliation
the utilization of poisonous materials to pollute the 3) Prohibition of dismemberment of enemy's casualties
enemies water sources i.e. chemical and biological war is 4) Prohibition of breach of war agreements and treaties
not permitted either. (Makarameshirazi, 1975, p9) [2]. 5) Prohibition of cutting and burning trees and farms
3. Moqaddase Ardabili believes: some samples of 6) Prohibition of captivating before ultimatum and inviting
transgressions which have been specified under Islamic to conciliation
tenets consists of the beginning of war before the enemy, 7) Prohibition of killing enemy's soldiers despite of the
killing the atheist which is under the contract with possibility of their captivation
Muslims and illegal killing (Moqaddaseardabili, p306) [3]. 8) Prohibition of killing animals
The Sunni commentators, likewise the Shia 9) Prohibition of war after accepting islam by enemy
commentators, have extracted the prohibition of WMD 10) Prohibition of war against the ahl al ketab whereas they
use from the E'tedah verse, for example: are ready for conciliation
4. Whba Zuhayli as a Sunni scholar in his exegesis 11) Prohibition of extension of war after receiving the
(Almonir) states: the beginning of war, killing Muslims, conciliation proposal by enemy
war against civilians such as; children, elderlies, 12) Prohibition of houses and towns destruction
destruction of houses, tree felling and burning farms are 13) Prohibition of water obstruction against the enemy
the samples of transgression. (Zuhayli, 1997, p179) [4]. 14) Prohibition of killing the escaping soldiers of enemy
15) Prohibition of killing the civilians including: children,
1.2.2 Hadiths women, elderlies, monastics, nurses, wounded, patients
1. Imam Ali (A.s) states: let your heart be replete with and messengers
people kind and do not be like brutal animals toward 16) Prohibition of killing the enemy's soldiers which have
them....because people are dividable into two groups; participated in war by duress
either are your religious brother or one like you in 17) Prohibition of killing the hirelings
creation. (Sayyed Razi, 1994, p53) [5]. 18) Prohibition of children participation in war
2. The Hadiths from the holy Prophet and the other Imams 19) Prohibition of non-precision attacks in order to avoid
have generality on Islamic prohibition of houses unlawful damages
destruction, burning farms, killing civilians and animals, 20) Prohibition of disabled use in process of war
spreading toxins into the enemy's dwelling place. In this
respect, Toosi narrates: When holy prophet had to have a 1.2.2.1 Study of the Conceptual Indications of Some
war against enemies, he used to gather his soldiers and tell Hadiths on Prohibition of Production and Usage of
them: move in the name of God, in favor of his way and Nuclear Weapons
because of his religion, do not transgress, fulfill your A). Some Nabavi Hadiths in religious texts on prohibition of
obligations, do not kill children and elderlies, do not poisoning the enemy's dwelling; Holy Prophet has prohibited
dismember and do not cut down trees unless it is poisoning in polytheist's dwellings. (Toosi, 1986, p143) [6].
inevitable. (Toosi, 1986, p139) [6] Koleini as well narrates It seems that even though there is a prohibition on poisoning,
that: When Prophet chooses a commandant for war, it is not limited to poison and include all sorts of weapons of
always advises him to observing the divine piety toward mass destruction, because there is no any difference among
himself and the other soldiers and then say fight in the water, weather or land poisoning using the other
name of God and in favor of God and only kill people unconventional weapons. Therefore, if there is the word of
who are atheist but fulfill your obligation and do not poison in Islamic texts, it refers to any weapon leading to the
overdo and do not kill children and do not dismember. destruction of innocents out of war zones including, humans,
(Koleini, 1987, p30) [7] There are some Hadiths that have animals, farms and environment. (Toosi, 1986, p143) [6].
been narrated by Sunni scholars, for instant Abi Shabih
says: “in the name of God and based on the divine 1.2.2.2 Some Supporting Implications
religion, free the captivates and do not kill children and  Firstly: definitive priority, because when there is a
women, do not indulge in order to increase your war prohibition on the usage of poison harming a limited area,
spoils, be kind and do goodness because Allah loves usage of nuclear weapon is absolutely prohibited under
them”.(Abi Shabih, 1988, p654) Termezi also narrates Islam.
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International Journal of Law

 Secondly: In wordings of Hadiths there is no any specific zones; elimination of jungle, farms and poisoning i.e.
emphasis on water, weather or land, rather there is a chemical and biological war is forbidden. (Makaram,
general banning that includes all sorts of WMD. 1974, p9) According to the authentic Hadiths and previous
 Thirdly: In such rules; that there is a prohibition because and contemporary religious Scholars fatwa, the use of
of a damaging nature, it is evident that the weapons of unconventional weapons is prohibited by religion, because
mass destruction, in terms of having the same function, it is recognized as the "modern sample" of poisoning.
definitely are forbidden.
 Fourthly: any extension of war to civilian areas is Some Hadiths Indicate the Prohibition of Using the
forbidden, no matter it happens by poison or any other Incendiary Weapons during War
kind of unconventional or nuclear weapons. 1) Based on this Hadiths, holy Prophet “bans the dates
Consequently; based on the indication of Hadiths on burning”. (Al Ameli, 1988, p43)
prohibition of poisoning in war and regarding the same 2) Toosi narrates from holy Prophet; “do not punish by
function of WMD, it can be concluded, the use of nuclear burning, because only God of fire has the right to punish
weapon is religiously banned. by fire”. (Toosi, 1986, p143) [6].

1.2.2.3 Comments of Islamic Scholars on the Prohibition 1.2.2.4 Comments of Islamic Scholars on Incendiary
of Poisoning During War Weapons
Based on these Hadiths, many scholars consider the poisoning Many Scholars of the Islamic world, according to such
on war and civilian areas unlawful, some of them include the Hadiths expressed: use of the incendiary weapons in the battle
followings: field is forbidden. Undoubtedly, part of the weapons of mass
1) Sheikheh-Toosi in his book (Al Nahayah) that in every destruction is incendiary, hence they will be subject of these
legal case, expressing only the related Hadith, specifies Fiqhi opinions. For example:
the rule governing on the case by scrutinizing in “Hadith”, 1) Mohagheghe Al Helli in Sharay'e believes that, any use of
instead of “argument”, and expression of legal case - incendiary weapon is forbidden. (Mohaghegh, 1994, p66)
[14]
because the practice of Sheikh in this book is the issuance .
of the fatwa based on the wordings of Hadith- states: 2) Mohaghegh Al Thani also illegalizes the use of incendiary
“indeed the poisoning on atheists dwelling is prohibited”. weapons, burning the trees, agricultural crops, animals
(Toosi, 1979, p51) and the innocent. (Karaki, 1987, p385)
2) Ibne Edris states: “killing the atheists is permitted, but that 3) Ibne Al Edris is one of those who has expressed; “fighting
must be distinguished between fighters and civilians, also by incendiary weapons is not permitted”. (Helli, 1989, p7)
[9]
the use of poison is not acceptable, because poisoning in .
their dwelling is forbidden”. (Helli, 1989, p7) [9]. Conclusion: According to the valid Hadiths and fatwas, it can
3) Abolmakarem believes that: “the poisoning in atheistic be concluded that, any use of unconventional armaments
towns is prohibited, and fighting in forbidden months is during a war is prohibited, because they can be recognized as
unlawful, of course about some of those who believe in the samples of incendiary weapons.
this rule, unless they start the war and Muslims have to be
the defender”. (Abolmakarem, p201) 1.2.2.5 Islamic Scholars View about the Banning the Use
4) Karaki says: “if it is possible to be the winner without of WMD
resorting to poisoning, use of poison in atheist realms is 1.2.2.5.1 Shia Scholars
unlawful”. (Karaki, 1993, p385) [10]. The Shia Scholars, based on the E'tedah verse and other valid
5) Shahid alavval believes that: “based on better comment, Hadiths, believe that the use of weapons leading to mass
poisoning is prohibited”. (Shahid alavval, 1996, p32) [11]. destruction is prohibited and the principle of distinction and
6) Shahid Thani in his book (masalek) states: “poisoning for proportionality must be considered, nevertheless, WMD
killing innocent people is forbidden”. (Shahid Thani, absolutely cannot cover such principles and lead to
1992, p24) [12]. irreparable damages for nature and humanity. Some of them
7) Allamah Helli in his book (Ershad) States: “by various include the followings:
ways it is possible to fight against enemy but by resorting 1) Do not let the polytheist wives help them in war against
to poisoning, unless you have to do it”. (Allamah Helli, Muslims, but in case of coerce you can kill them. (Toosi,
1990, p344) 1979, p292)
8) Ayatollah Sadr, in addition to the fatwa on prohibition of 2) When there is no any necessity, you do not have right to
poisoning the atheist dwellings, goes one step further and kill women during war. (Alborraj, 1985, p303) [15].
expresses: “even though in Sokoni's Hadith the title of 3) In war against polytheists, when one of them obeyed you
poison has been utilized, but the poison undoubtedly does and accepted your logic, his killing is not permitted
not have subjectivity, rather in terms of criterion includes because he is your religious brother. If he is unruly, try to
any unconventional weapon”. (Sadr, 1999, p384) control him and if they are not combatant, their killing is
9) Grand Ayatollah Khoyi believes that: “based on Prophet's not permitted. (Helli, 1912, p911)
prohibition on poisoning the polytheists’ realms, that is 4) During war; killing the insane, children and women of
unlawful”. (Khoyi, 1989, p371) [13]. polytheists is not permitted unless there be a necessity.
10) Lots of contemporary sources of emulation have (Helli, 1992, p486)
prohibited in their fatwas the use of unconventional 5) Only in case of necessity, killing the insane, children and
armaments during war. Ayatollah Makaram says: in women in war against polytheists is permitted. (Helli,
addition to the prohibition of war extension to the civilian 2000, p80)
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International Journal of Law

6) Do not kill elderlies, children and women. (Najafi, p73) Hanafi, Shafei and Hanbali, using the unconventional
[16]
. chemical, biological, nuclear and even unknown weapons in
7) Holy Prophet has banned killing the children, elderlies and all sorts is permanently forbidden. The verses of Quran
disabled in war against polytheists and atheists. (Miyanji, explicitly prohibits the usage of WMD and considers the
1990, p91) [17] destruction of cities and societies like fighting against God.
The tenets of respecting “just war” is extractable from the
1.2.2.5.2 Sunni Scholars Hadiths sources. Accordingly, every Muslim has been
The Sunni Scholars, like the Shia Scholars, based on the prohibited from killing the civilians, home and farms
Verses and Hadiths have issued the Fatwas on prohibition of destruction, animal killing, poisoning the enemies’ water and
WMD and any action leading to the extension of war to expanding war zone to civilian areas. All of the
civilian zones and destruction of houses, trees, farms, animals aforementioned cases imply the definitive prohibition of
and environment, here I mention some of them: WMD under the International Islamic law, since the damages
of WMD usage is remarkably heavier than them. Almost in
1.2.2.5.2.1 Hanafi Scholars no issue like WMD usage, there is a strong consensus among
1) In war against enemies of religion; insane, women, child, the Muslim scholars on its ban. Shia and Sunni scholars
blind, cripple, hand-cut and disable elderlies must not be unanimously proscribe the resorting to WMD. The manifest
killed. (al hanafi, 1998, p128) instance of this approach is the issuance of Nuclear Fatwa by
2) The basis of war against someone is his ability in fighting, grand Ayatollah Khamenei in prohibition of nuclear weapons
hence the aforementioned people do not include this basis. which was registered in United Nations as an internationally
(al shokani, 2001, p411) [18]. formal act. According to the general principles of Islamic
3) The elderlies, children, disabled, women and civilians international law containing the “just war”, “fulfillment of
must not be damaged during war against enemy. (al promise”, “sustainable peace”, “Not harming others”,
enayah, p425) [19]. “proportionality” and “distinction” any resorting to WMD,
4) When allah has said raise against people who have raised regardless of its function, including destruction, testing or
against you, we can conclude that there is no any deterrent policy is everlasting prohibited.
permission for war against the disabled, because they
cannot raise against anybody. (Sarakhsi, 1996, p450) [20]. 3. References
1. Tabatabai. Tafseerolmizan, Islamic Publisher, Qom 1955,
1.2.2.5.2.2 Shafe’i Scholars p87.
1) Because of Nabavi prohibition, Muslims do not have the 2. Makarameshirazi. Tafseerolnemuneh, Darolkotob, 1975,
right to kill disabled and women, also killing the p9.
intersexes is not permissible, because in case of doubt 3. Moqaddaseardabili. Zobdatolbayan, p306.
about the gender of person, Muslims must treat with 4. Zuhayli. Tafseerolmonir, Darolfekr, Beirut, 1997, p179.
caution and let them be live. (Al Noovi, p295) [21] 5. Sayyed Razi. Nahjolbalagha, Darolosvah, Beirut, 1994,
2) Shafei said: Holy Prophet has prohibited his soldiers from p53.
killing women and children. (Ibne Edris, 1983, p253) [22]. 6. Toosi. Tahzibolahkam, Darolkotob, Tehran, 1986, p139.
3) Killing children, women, the insane and intersexes has 7. Koleini. Alkafi, Darolkotob, Tehran, 1987, p30
been prohibited. (Al Sherbini, 1958, p223) [23]. 8. Al Termezi, Sonan. Darolfekr, Beirut, 1983, p86.
4) Majority of Scholars have expressed, if women and 9. Helli. Ershadolazhan, Islamic Publisher, Qom, 1989, p7.
children raised against the Muslims in order to kill them, 10. Karaki. Jameolmaghased, Alelbait, Qom1993, p385.
in this case killing them is permitted. (Al Noovi, 1999, 11. Shahid alavval. Dorusoshariyyah, Islamic Publisher,
p48) Qom, 1996, p32.
12. Shahid Thani. Almasalek, Almaaref, Qom, 1992, p24.
1.2.2.5.2.3 Hanbali Scholars 13. Khoyi. Almenhaj, Madinatolelm, Qom, 1989, p371.
1) Ibne Abbas in his comment on the verse 190 of Baqarah 14. Mohaghegh. Sharaye’e, Almaaref, Qom, 1994, p66.
has said: killing women and children and elderlies is 15. Alborraj. Almohazzab, Islamic Publisher, Qom, 1985,
prohibited. (Ghodamah, p544) [24]. p303.
2) Under the Islamic jurisprudence, not killing atheist 16. Najafi. Javaher, Darolehya, Beirut, p73.
women and children after Muslims domination is a well- 17. Miyanji, Al Asir. Islamic Publisher, Qom, 1990, p91.
stablished rule, especially when there is a Nabavi Hadiths 18. Al Shokani, Fatholghadir. Darebnehazm, Beirut, 2001,
in this respect. (Al Abdoalrahman, p400) p411.
19. Al Enayah. Omdatolgharee, Darolehya, Beirut, p425.
1.2.2.5.2.4 Maliki Scholars 20. Sarakhsi, Alseyr. Sherkatole’elanat, Cairo, 1996, p450.
1) There is an authentic Hadiths from holy Prophet 21. Al Noovi. Almajmu’e, Darolfekr, Beirut, p295.
proscribing killing women and children, accordingly that 22. Ibne Edris. Kitabol omm, Darolfekr, 1983, p253.
is forbidden under Islam. (Alazhari, p414) [25]. 23. Al Sherbini. Moghnee, Daroehya, Beirut, 1958, p223.
2) Based on Quran and Sunnah, killing children, women, 24. Ghodamah. Sharholkabeer, Darolketab, Beirut, p544.
elderlies and hirelings has been banned. (Al Gharafi, 25. Alazhari. Althamar, Almaktabah, Beirut, p414.
1994, p389) [26]. 26. Al Gharafi, Asseraj. Darolma’refah, Beirut, 1994, p389.

2. Conclusions
According to all Islamic formal sects including Jafari, Maliki,
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International Journal of Law

International Journal of Law

ISSN: 2455-2194, RJIF 5.12
www.lawresearchjournal.com
Volume 3; Issue 1; January 2017; Page No. 17-18

Judicial approaches on women empowerment

Dr. PK Rana
Reader, M.S. Law College, Cuttack, Odisha, India

Abstract
In India, feminine glory was at its zenith in the vedic period which has been marked as a portal when our founding fathers
enshrined not only the noble principles of equality, liberty and social justice but also provided for benign discrimination, in favour
of women. To achieve this constitutional goal, our judiciary has done respectable services, which deserves its credibility

Keywords: Status of women, Protective Discrimination, Adultery and Judicial Activism

1. Introduction 3. Participatory Sexual Act

The status of women in India is a mirror image of their Adultery as an offence totally insulate a woman from criminal
counter-parts in other parts of the world and has swindled from liability and holds the male responsible for it on the premise
prominence to insignificance on account of social, cultural and that the women is only the victim and not the perpetrator of
political developments from ancient to modern era. The woman crime. Section 497 of I.P.C. is thus often challenged as
was made to suffocate and yearn for identity in the system, violative of equality provision. In Yousuf Abdul Aziz v. State of
where her personality was de-personified to anonymity. Be it Bombay [16] the same question arose. The court opined that
the health, nutritional, educational social, political and Constitution provides for specific protection to females and sex
economic aspect of life, the woman had to compromise and is a sound classification. Similar stance was taken in V Revathi
take a back seat. The system was developed which created v. Union of India [17], wherein the court opined that the
unfair and unequal distribution of the necessities of life aggrieved husband whose wife has been disloyal to him has no
amongst the sexes. Efforts have always been made to bring right to prosecute his wife, in as much as by the very definition
about a change in the society and its norms especially in of the offence, only the man can commit it, not a woman. The
addressing the cause of women. These efforts resulted in philosophy underlying the scheme of these provisions appears
challenging the age-old discriminatory practices and in to be that as between the husband and the wife social good will
recognizing the women as a human being worthy of equal be promoted by permitting them to ‘make up’ or ‘break up’ the
share in the development. matrimonial tie rather than to drag each other to the criminal
The Framers of the Constitution were aware of the sociology of court. Similarly in S. Vishnu v. Union of India [18] the court
the problem of the emancipation of the female sex. They opined that the contemplation of the law evidently is that the
realized that equality was important for the development of the wife, who is involved in an illicit relationship with another
nation. It was evident that in order to eliminate inequality and man, is a victim and not the author of the crime. The offence of
to provide opportunities for the exercise of human rights it was adultery is an offence against the sanctity of the matrimonial
necessary to promote education and economic interests of home, generally committed by the man.
women [1].
4. Protective Discrimination Benefit
2. Constitutional Concommitment The Constitution provides reservations to women and the same
The principle of equality was adopted in the Constitution [2] benefits are available to the women of exploited class. But in
with special protective clauses for women [3] in addition to Valsamma Paul v. Cochin University [19], the court denied the
fundamental promise of Liberty. Equality and maintenance of benefit of reservation to a lady of upper caste who married a
Dignity of an individual [4]. The equality was all pervasive even man of lower caste on the ground that the female had an
in the matters of employment [5]. opportunity of having the advantageous life in the life. Similar
The contours of right of existence and procedural propriety stance was taken by the apex court in Meera Kanwaria v.
were duly recognised [6] in addition to prohibition of trafficking Sunita [20], wherein the court opined that an upper caste female
in human beings [7]. It is ardent duty of the State to eliminate marrying a lower caste male can not avail the benefit of
the inequalities in status, facilities and opportunities [8] and reservation as such recognition testamounts to the fraud on the
provide equal means of livelihood [9] as well as equal pay for Constitution. In K.S.Jayashree v State of Krerala the petitioner
equal work [10]. Necessary protection is to be accorded by the was denied the admission in the MBBS course as the family
State against economic exploitation as well as of health and income of the petitioner was higher than the caste and income
strength of women [11]. The people are expected to renounce the criterion specified by the government to claim the benefit of
practices derogatory to the dignity of women [12]. Necessary reservation under Article 15(4). The Supreme Court while
participation in the political life is ensured [13] at panchayat [14] dismissing the petition opined that the determination of social
and municipal [15] levels for women under the provisions of the backwardness does not depend solely on caste, though it is one
Constitution. of the relevant test. Social backwardness is in the ultimate
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International Journal of Law

analysis the result of poverty which is aggravated by the the inequalities and has left no stone unturned to ensure the
considerations of the caste. dignified life to the women-folk.
Apart from judicial determination concerning reservations in
public employment, the judiciary has struck a death knell to 6. Reference
discriminatory provisions in the service rules against the 1. Mamata Rao ‘Law Relating to Women & Children’, EBC
females. In C.B.Muthamma v. Union of India [21], the validity Lucknow. 2008.
of Indian Foreign Service Rules was challenged which 2. Article 14
provides that the females in Indian foreign service should take 3. Article 15(3).
the permission of the government before the marriage and any 4. Preamble of Indian Constitution
married woman can be made to resign on the satisfaction of the 5. Article 16.
government that her domestic commitments are likely to come 6. Article 21.
in the way of her official duties. 7. Article 23.
In S.R.Venkataraman v. Union of India [22], the female was 8. Article 38(2).
compulsorily retired from the service on account of an adverse 9. Article 39(a).
entry in the service record. She contended that the retirement 10. Article 39(d).
was arbitrary as the proper assessment of her service record has 11. Article 39(e).
not been made. The court opined that when a public body is 12. Article 51-A(g).
prompted by a mistaken belief or influenced by extraneous 13. Article 325.
matters in the exercise of the powers in a manner not warranted 14. Article 243D.
by law or to arrive at a contradictory conclusion, it shall be an 15. Article 243T.
abuse of the powers. 16. AIR 1954 SC 321.
In Air India v. Nargesh Meerza [23], the court struck down the 17. AIR 1988 SC 836.
discriminatory provisions in the service rules which provided 18. AIR 1985 SC 1618.
tht an airhostess can continue in service up to the age of 35 and 19. AIR 1996 SC 1011.
the same could be terminated if she contracts a marriage within 20. AIR 2006 SC 597.
four years of initial service or on the first pregnancy. Though 21. AIR 1979 SC 1868.
the court opined that the right to equality does not warrant 22. AIR 1979 SC 49.
adoption of a technical, pedantic or doctrinaire approach and 23. AIR 1981 SC 1829.
there can be classification on the basis of marriage. Yet it 24. Municipal Corporation of Delhi v. Female Worker, AIR.
disapproved the powers vested in the managing director 2000. 1274.
concerning the extension of retiring age in the absence of 25. Mohammed PK. State of Kerala, 1984 Cr. L.J.795.
guiding principles. The court accorded its disapproval to the 26. Somnath PK. State of Kerala, 1990 Cr.L.J.542.
argument about the attractiveness of the air-hostesses as based 27. Vishakha v. State of Rajasthan, AIR 1997 SC 3011.
on pure speculation and an artificial understanding of the fairer
sex.
The court has come to the rescue of the non-regular female
employees in providing them the maternity benefit which was
being paid to the regular female employees. The court opined
that there is no justification in denying the maternity benefits to
the casual or daily wagers [24]. on the question of indecent of
females the court has taken the stance that there is nothing
wrong in cabaret dance in hotes provided such a performance is
not indicent [25]. The court has always taken a serious view of
the indecent depiction of females in publications [26]. The court
has expressed its non-satisfaction over the law concerning
sexual harassment when it gave direction to the government to
implement guidelines concerning sexual harassment [27]. The
court emphasized that it is the duty of the employer to prevent
the commission of the acts of sexual harassment and to initiate
disciplinary proceeding against the guilty. The court has opined
that the contents of the fundamental rights guaranteed in the
Constitution are of sufficient amplitude to encompass all facets
of gender equality including preventing sexual harassment.

5. Conclusion
Thus the Indian judiciary has done commendable service in
protecting and preserving the rights of the females as well as
sensitizing the society concerning the rights of the half of the
human population. The Indian judiciary has struck at the
injustices perpetuating in the Indian system against the women
and tried to maintain the balance. The judiciary has removed

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International Journal of Law

International Journal of Law

ISSN: 2455-2194, RJIF 5.12
www.lawresearchjournal.com
Volume 3; Issue 1; January 2017; Page No. 19-21

Critical analysis on criminalization against burning of widows

Dr. PK Rana
Reader, M.S Law College, Cuttack, Odisha, India

Abstract
The glorification of Sati has culminated in India even after establishing her sincere claim as one of the incoming socio-economic
power in the world. The most controversial Sati case has been that of an incident took place in 1987 which forced our lawmakers to
think against such social onslaught activities as criminal offence. For this, law is not the only source to combat rather popular
consciousness along with women empowerment is quite essential.

Keywords: Practice of Satee, Bengal Regulation of 1929, and Commission on Sati (Prevention) Act, 1987

1. Introduction During the British Regime, The Sati Regulation Act, XVII of
It is strange that in the 21st century, one should still come 1829 was enacted after much consultation within and without
across the practice of Sati has been performing in India, which the government. It was called:
had outlawed by Lord William Bentinck, on an initiative taken “A Regulation for declaring the practice of suttee or burning or
by the great social reformer Raja Rammohan Ray in an early burying alive of the widows of Hindus, illegal and punishable
19th century. Since that time, India grew as a nation, gained by the criminal courts [3].”
independence became one of the biggest economies of the Thus the Act was a major departure from the previous policy
world, developed nuclear capability and all indicators point to on Sati. It was intended to punish all Sati as a criminal act.
emergence of the country as a super power in another two There was no longer any distinction between legal and illegal
decades. It is irony that even after more than a century and half Sati. Section 1 of this Act was more like a preamble. It stated:
years of the Bentinck’s Regulation; the issue of Sati remain “The practice of suttee or of burning or burying alive the
alive in our sub-continent, which shows that the status of widows of Hindus is revolting to the feelings of human nature:
women has continued to be so low that the society is not it is nowhere enjoined by the religion of the Hindus as an
beyond burning widows to make her join her dead husband in imperative duty….”
his journey to the another world. In unequivocal terms Section 2 declared Sati to be illegal and
punishable by criminal courts [4].
2. Historical Background on Practice of Sati
Max Muller gives references to the custom of widow burning 3. Bengal Regulation 1929
among Greeks and Synthians. Similarly Barbosa, a Portugese It was 1929 that Lord William Bentinck with the help of Raja
traveler, described the practice of Sati was not only confined to Rammohan Roy introduced a formal law prohibiting Sati,
the princely states but also to other states like Vijaynagra called “Indian Sati Regulation Act, 1829”, which had immense
Kingdom [1]. It appears that the practice of Sati started in impact. Aiding and abetting a sacrifice whether voluntary or
Brahmanical India a few centuries before Christ. None of the not was deemed to be a culpable homicide and the Court had
Dharmasashtras contain any reference to Sati. The Manusmriti the discretion to decide the punishment after referring to the
is entirely silent on it, the Mahabharata is also very sparing in nature and circumstances of the case. The drafters of the Indian
its reference to widow burning. In epigraphic records, reference Penal code in 1860, under the East India Company watered
is made to the practice of Sati in the Gupta-era. The Jauhar down the severity of the penal provision on Sati when Sati, as a
practiced by the Rajput ladies of Chittor are well known. voluntary act got included in the general provision on suicide
Though several smritikars disapproved such a practice, once it and such suicides were put outside the pale of legal definition
took root, the learned commentators and digest writers were of murder by inserting an exception number 5 to S.300, which
found to support it with arguments of heavenly abode, devotion says that: “Culpable homicide is not a murder when the person
to husband, etc. Harita says, “that woman who follows her whose death is caused, being above the age of 18 years, suffers
husband in death purifies three families, namely, of her mother, death or takes the risk of death with his own consent.”
of her father and of her husband” [2]. From the accounts of Sati, for the said section, is an offence only if the act appears to
travelers, it appears that widow burning prevailed more in be involuntary. However, the act of committing Sati can be
Bengal during the centuries immediately preceding its abolition punished for culpable homicide [5] and abetment to commit
than anywhere else in India. Cole Brooke wrote in 1795 A.D. suicide [6]. This act can also be punished under other provisions
that the martyrs of this superstition have never been numerous. relating to offences affecting life covered under Chapter XVI
He described it as a practice which was in vogue in some parts of the code such has attempt to murder [7] and attempt to
of Rajasthan. culpable homicide [8].

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International Journal of Law

4. Legal Prohibition of Sati in Independent India The Act of 1987 bears a worthwhile comparison with the
Sporadic incidents of Sati have been reported from time to time regulation of 1829 though they are different in their focus and
since 317 BC in the Punjab, right up to Roop Kanwar in 1987 content. Whereas the regulation was strictly administrative in
and Mathura in 1991, Banda in 1992, a teenaged girl named nature, and focused on the methods to get a proper enforcement
Pawan, on September 26, 1994, who was saved by the Police in of the law of the land treating Sati as culpable homicide, the act
the nick of time and recently 65-years-old Kuttu on February 6, passed in 1987 on the other hand criminalized the act of
2002. Till 1987, there were three laws in force regulating Sati. abetting Sati in any manner and laid down a definite
Two out of these were passed in the British times. The punishment for the crime of committing Sati and participating
Regulations were (1) Bengal Sati Regulation, 1829, (2) in its glorification in a special enactment. The regulation did
Tamilnadu Sati Regulation 1830 and (3) Rajasthan Sati not prescribe any punishment for those that actually committed
(Prevention) Act, 1987. The Roop Kanwar incident forced the the crime but it imposed harsh fines and even imprisonment on
then Rajasthan Government to bring in the State a Sati a very large number of land revenue functionaries, police
Prevention Ordinance, 1987, which was passed by the authorities who allowed sati to take place due to their tacit
legislature on October 1, 1987. The Central Government support. The main culprits were meant to be prosecuted under
followed it with a central legislation called the Commission of the criminal law of the land. There is no administrative
Sati Prevention Act, 1987, the sole legislation on this issue injunction of the Government even today which comes down
which applies to the whole of the country except Jammu and so heavily on officers and other quasi-government authorities
Kashmir. This Act overrides exception 5 of 300 of I.P.C and who could have been in a position to prevent the commission
any law of any State in force on the day this Act was enacted. of sati but failed to do so. The present Act focuses on the
This Act adopts the provisions of the Ordinance passed by the persons directly concerned with the act of sati and defines what
Rajasthan Legislature. As per sec 3 of the Act any person who sati implies and even what is meant by glorification.
attempts to commit Sati forcefully or voluntarily and does any The new Act has taken a major step ahead of the 1829
act towards such commission can be punished with regulation as it prohibits the practice of sati glorification which
imprisonment for a term of maximum one year or with fine or could well be considered as a part of freedom of citizens to
with both. Section 4 of the Act talks of punishing a person who practise their religion guaranteed under Art.25 [10] of the
abets a woman to commit Sati. The punishment prescribed for constitution and section 295 [11] of Indian Penal Code that
this is either death or life imprisonment besides the accused is prohibits defiling damaging of places of public worship. In
also liable to pay a fine. The law also makes punishable any 1829 the British rulers were careful not to mention the word
activity that could be termed as glorification of Sati as per Sec. religious practices in the regulation and no offence has been
5 of the Act. Section 7 of part III of the Act provides for made of glorification as such or to worship of sati in temples.
removing any structure that is used for worship or performing The rulers were so circumspect of the religious sensibilities of
ceremonies to honour a woman who has committed Sati. This the subject people that in the first draft of the regulation they
part also talks of provisions with regard to seizure of property had even advised that the criminal cases involving sati should
by a magistrate and police. Cases with regard to this act, not be tried by a Mohammedan judge, but, later after a public
according to the statue have to be presented before special debate on the issue, perhaps realizing that by doing so these
courts, which are constituted and function under part IV of the may encourage the people view sati as a lighter offence than a
Act [9]. culpable homicide, they dropped this provision. In 1987 the
government has shown greater confidence in handling religious
5. Comparative analysis of the regulation of 1829 and the sensibilities of people and the Act criminalizes sati worship,
act of 1987 sati glorification and arms the executive with the power to
The Regulation of 1829 was in force from the time of its remove a sati temple. These provisions however need to be
promulgation throughout the territories immediately subject to implemented so that they do not remain empty words on paper.
the Presidency of Fort William which was essentially the The main thrust of the regulation of 1829 has however not been
region around modern Kolkata. It is essentially administrative replicated in the 1987 Act. The regulation created a moral fear
in nature and declared Sati as amounting to culpable homicide amongst all concerned authorities under Government who did
that could be tried by a Criminal Court, which would use its not actively participate suppressing sati and there is no
discretion in awarding the punishment. The regulation laid provision paralleling the administrative measures in the 1829
down stringent provisions obliging a host of officers to furnish regulation which will make the police remain on their toes to
information on the proposed or actual event of Sati in their check sati from being committed. In the present situation it
jurisdiction. It sanctioned a fine of Rs. 200. And in event of becomes necessary for the media to play the role that was
failure to pay the fine, the accused would have to undergo meant to be performed by the various levels of Government
imprisonment for a maximum of 6 months on the officers functionaries and bring all case of sati to the knowledge of the
appointed by the British Government who fail to furnish public. It is said that before Roop Kanwar incident took place
required information about the crime. Aiding and abetting there had been another incident of sati which encouraged the
sacrifice whether voluntary or not was deemed to be culpable Roop Kanwar sati incident and that the other sati had gone
homicide. Punishment was at the discretion of the court unnoticed. Fortunately due to technological revolution it is not
according to the nature and circumstances of the case. No plea necessary to depend on Government functionaries alone and
for leniency was to be admitted on the ground that the victim the roving cameras of the media can help in law enforcement
had desired to be sacrificed. The regulation also clarified that as well. Media has assumed an important role in the proper
none of the provisions of the regulation may be read to mean enforcement of the sati prevention laws.
that death penalty could not be handed to the accused in Sati
cases.
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International Journal of Law

6. Conclusion
The practice among the Indian women of ending their live by
setting themselves ablaze with the pyre of their deceased
husbands or being forced to do so, in the yesteryears – the “Sati
Pratha” though banned now, reflects the extent of dependence
of women on their men. However, legislation alone cannot by
itself solve deep-rooted social problems; one has to approach
them in other ways too. Therefore, what is required is not only
a strong legal support network but also opportunities for
economic independence, essential education and awareness,
alternative accommodation and a change in attitude and
mindset of society, judiciary, legislature, executive, men and
the most important woman herself.

7. References
1. Deewan VK. Offences Against Women, See also Mamata
Rao, Law Relating to Women and Children, 2nd Edn., EBC
Publ. Lucknow. 2008, 182-189.
2. Ibid, at. 182.
3. Regulation Act 17 of. R.M. Roy, ‘A Conference between
Advocate for and an Opponent of the Practice of Burning
Widows Alive’, Nov. 30, 1818; A second Conference on
said subject on dt. Feb. 26, 1820. See more details
V.P.Varma, ‘Modern Indian Political Thought, 11 th Edn.
Patna. 1929.
4. Section 5 of the Regulation.
5. S.299 of Indian Penal Code
6. S.306 of Indian Penal Code
7. S.307 of Indian Penal Code
8. S.308 of Indian Penal Code
9. Sati Verses Murder, The Hindu, 3 December, 1999.
10. Article 25 makes it clear that all persons are equally
entitled to freedom of Conscience and right freely to
profess, Practice and propagate religion.
11. S.295 of the Penal Code provides that this section
penalizes destruction, damage or defilement of places of
worship and places of veneration with the intention or
knowledge to insult the religions feelings of any class of
person.

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International Journal of Law

International Journal of Law

ISSN: 2455-2194, RJIF 5.12
www.lawresearchjournal.com
Volume 3; Issue 1; January 2017; Page No. 22-23

Judicial examination on noise pollution: A critical analysis

Dr. PK Rana
Reader, MS Law College, Cuttack, Odisha, India

Abstract
Noise being the major health hazard for human beings and therefore it is recognized as one of the component of Environment
pollutant. Noise pollution from the industries, is considered as the major health hazards for the people living in the vicinity. In
order to check this, legal and administrative measures shall be enforced effectively.

Keywords: Noise pollution, Public Interest litigation, use of Loud speakers, Public nuisance

1. Introduction 3. Judicial Discourse

Noise Pollution is a big problem of our society. It is increasing In Chairman, Guruvayur Devaswom Managing Committee,
day by day specially in urban and industrial areas. Airports, Guruvayur v. Sup. of Police [3], a writ was filed under Art. 226
Industries, Highways, construction activity and railway station of the Constitution of India against the order of Police officer
are considered to be high noise level area. Noise Pollution has to remove the loudspeaker which was installed for a festival
been identified as “a slow agent of death.” season. The respondent alleged that such type of loudspeaker
The American Jurisprudence [1] analyses noise as an unwanted caused irreparable damage of ear and they were installed
sound that unwanted effects, a sound without value. The without obtaining sanction from any competent authority. After
Encyclopedia Britannica defines noise as any undesired sound filing writ petition on which stay was granted by single judge;
and the Encyclopedia Americana defined it as unwanted sound. the Guruvayur temple authorities approached the Kerala State
According to environmental noise being major health hazard Pollution Control Board to get expert opinion regarding the use
for human beings it is recognized as “Environmental of horn type loudspeaker. Report of State Pollution Control
Pollutant”. The Central Government has recently notified the Board found that there were no noise pollution if put at the
noise Pollutant (Regulation and Control) Rules, 2000 on Feb. height of 3 meter in temple premises. The court accepted the
19, 2000 for preventing adverse impact on human being expert opinion of the Pollution Control Board and permitted
including harmful psychological effects. It provides for the use of horn type loudspeakers and the police authorities
ambient air quality standards in respect of noise for different were directed to give sanction to Management Committee of
areas/ zones. the temple to erect such loudspeakers [4].
Day time means from 6 a.m to 10.00 p.m. Silence zone means In Bijayananda Patra v. Dist. Magistrate, Cuttack [5] held that
an area comprising not less than 100 meter around hospitals, noise is considered as unwanted sound that may adversely
educational institutions, religion places and Courts. They are to affect the health and well being of the individuals. Noise
be declared by competent authority that which zone will be Pollution connotes unwanted sound in the atmosphere. The
silence zone. It is unwanted because it lacks an agreeable Himachal Pradesh High Court in Smt. Ved Kaur Chandel v.
amicable quality. It may be said that noise therefore sound but State of H.P [6] accepting he PIL for threatened pollution of air,
it is pollution when the effects of sound become undesirable. water and noise from the establishment of the tyre retreading
unit observed that Pollution Control Board has a heavy
2. Public Interest Litigation responsibility to ensure that before starting the industry. It
Public Interest Litigation (PIL) can be filed by any public takes necessary precaution not to cause air, water and noise
spirited person or institution under article 32 to the Supreme pollution.
Court of India and under 226 to the High Court of any state. It In Citizen Council Jamshedpur v. State of Bihar [7], PIL was
is a new orientation of judicial discourse demonstrating rejected by the H.C of Patna. In this case, PIL was filed by the
collaborative effort on the part of the petitioner. State or Public residents of the locality under Art. 226 praying to reject the
authority and the court to secure observance of constitutional permission granted to the Handloom and Khadi Board to
or legal rights conferred upon the vulnerable or weaker section organize exhibition in a public park. The petitioner submitted
of the society, workers or handicapped persons and to secure that park is used for morning walk and children of the locality
social justice to them. It also demonstrates the effect of public play there. Besides this, the exhibition would cause air
spirited person, journalists and social activists to ameliorate the pollution and noise pollution. The Court after considering all
suffering of the toiling masses, worker, and the weaker section the factors held that since the petitioner failed to produce any
of society. The seed of the concept of PIL, were initially sown evidence that exhibition would be health hazard and cause
in India by Justice Krishna Iyar in 1976 while disposing an noise pollution and that the exhibition had already started. So
industrial dispute Mumbai Kamgar Sabha, Bombay v. Abdul petition was not maintainable.
Bhai [2] In the case, of M.C. Mehta v. Union of India [8], the petitioner
filed PIL under Art.32 seeking a direction against Haryana
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International Journal of Law

Pollution Control Board to control air and noise pollution

caused by stone crushers, pulverizes and mine operations in
Faridabad within a radius of five Km. from tourist resort of
Badkal lake and Surajkund.
The Court held that to preserve environment and control
pollution within the vicinity of the two tourist resorts, it was
necessary to stop mining in area. Further the Court directed to
develop green belt of 200 meters at 1 Km. radius all around the
boundary of two lakes and leaving another 800 meters as a
cushion to absorb the air and noise pollution.
Noise pollution from the industries was also recognized as
health hazard in V.Lakhmi Pathy v. State of Karnataka [9] by
the H.C of Karnataka. In this case, it was found that industries
were established in an area in development plan of the city.
Polluted air, land and noise nuisance posed danger to health of
residents of the area. So Court ordered for the closure of the
industries of that area. The Court also held that pollution of air
and noise is violative of Art. 21 of the Constitution of India.
Landmark decision made by the Supreme Court in Church of
God (Full Gospel) in Indian v. KKRMC Welfare Association
[10]
. The question before the Court was whether right to practice
any religion, profess and propagate it is in the form of use of
loudspeakers and other instruments authorities a person/
institution to violate the rules framed under the Environment
(Protection). Act. 1986 regarding the noise pollution level. The
Court answered in negative and denied the right of the Church
of God to use amplifier and other noise making devices for
prayer and observed that the noise rule are required to be
enforced. It is high time when they should be implemented.

4. Conclusion
The judiciary in India has done a commendable service
towards combating noise pollution, which is considered as one
of noticeable result of modern civilization. The above
discussion amply proves that noise pollution has assumed
threatening dimension and needs to be nipped in the bud. The
Noise Pollution (Regulation and Control) Rules, 2000 is a
welcome venture, but these rules are not sufficient to control
this menace. Some immediate and efficient measures must be
taken in this regard. Therefore, it is suggested that prescribed
standards must be enforced effectively and strictly.

5. References
1. Encyclopedia Americana, 2nd Edn 1969.
2. AIR 1976 SC 1455.
3. AIR 1998 Ker 122.
4. Ibid.
5. AIR 2000 Ori. 70.
6. AIR 1999 HP 59.
7. AIR 1999 Pat 1.
8. AIR 1996 SC 1977.
9. AIR 1992 Kant 57.
10. AIR 2000 SC 273.

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International Journal of Law

International Journal of Law

ISSN: 2455-2194, RJIF 5.12
www.lawresearchjournal.com
Volume 3; Issue 1; January 2017; Page No. 24-30

Gender, culture and crimes

Saif Al-Rawahi
Assistant Professor, College of Law, Sultan Qaboos University, Muscat, Oman

Abstract
There is no doubt that in all societies, response to crimes, particularly serious ones, is significantly affected by the gender of the
defendants or sometimes the gender of the victims. Within societies, female gender expectations and gender roles are different
from those of males. There are some kinds of crimes that can be expected to be committed by women, but there are others that are
not. On the one hand, there is no gender role corresponding to the former kinds of crimes, or at least it is not clear. On the other
hand, if a woman commits a crime that society does not expect her to commit, such as killing her children, she will invariably be
treated harshly by that society. Society’s expectations depend on the culture and tradition more than the law. Since regulations, in
general, make no difference in dealing with crime on the basis of gender, in practice the situation may be different. The aim of this
paper is to consider how gender affects the way the law and society respond to different types of crime and violence. It will argue
that gender plays a significant role in dealing with various crimes within the criminal justice system.

Keywords: evil woman, femininity, gender, race, violent crime

Introduction expectations affect the way that it responds to crimes,

The relations between gender and crime are deep, persistent particularly violent crime. These issues and questions will be
and paradoxical.1 Gender has been recognized as one of the examined by using concrete examples (statistics and cases),
most important factors that play a significant role in dealing without focusing on any one country or only one type of crime.
with different kinds of crimes within criminal justice systems. 2
It has long been considered that men and women differ in their Gender, Crimes and Cultural Views
offence rates and patterns and in their victimization There is no doubt that in all societies, response to crimes,
experiences. Braithwaite (1989) [6] clearly stated that crime is particularly serious ones, is significantly affected by the gender
“committed disproportionately by males.”3 Such a statement of the defendants or sometimes the gender of the victims.
appears to have a significant effect on the way that both law Within societies, female gender expectations and gender roles
and society respond to different kinds of crimes. 4 The idea that are different from those of males. There are some kinds of
crimes are committed primarily by males has had a major crimes that can be expected to be committed by women, but
effect on criminological thinking and on criminal justice there are others that are not. On the one hand, there is no
policies. This effect is different from one society to another and gender role corresponding to the former kinds of crimes, or at
from time to time within one society, since gender roles and least it is not clear. On the other hand, if a woman commits a
expectations are changing. crime that society does not expect her to commit, such as
Although as a general statement it can be said that the law does killing her children, she will invariably be treated harshly by
not differentiate between men and women, research conducted that society. Society’s expectations depend on the culture and
in the field of criminology have clearly shown that social tradition more than the law. Since regulations, in general, make
characteristics of offenders such as race, gender and class, have no difference in dealing with crime based on gender, 7 in
influenced the decisions made in the CJS.5 For example, Morris practice the situation may be different. 8
(1987) [30] has considered in his study that women are treated Even today in some societies, women are perceived as sexual
more leniently than men within the CJS, and they are less objects and are expected to remain within male-dominated
likely to be arrested, convicted and jailed.6 This paper will ideologies such as homemaker and nurturer, subordinate to
consider whether society’s views about gender roles and men.9 In societies such as Pakistan,10 women are considered to
be the ‘property’ of men, and domestic violence may be
understood as the right of men over the women with whom
1
Frohmann, L. and Mertz, E. Legal Reform and Social Construction:
Violence, Gender, and the Law, Autumn 1994, Vol. 19, 4 Law & Social
Inquiry. pp. 829-851. P: 830.
2
See Edwards, S., S.M. Sex and Gender in the Legal Process, 1996, Ashford
7
Colour Press. P: 193. See, Fenman, Supra note 5 and Daly, K, Discrimination in the Criminal
3
Braithwaite, J. 1989. Crime, shame and reintegration. Cambridge, UK: Courts: Family, Gender, and the Problem of Equal Treatment, 1987, 66
Cambridge University Press. Page: 44. Social Forces. PP: 152-175.
4 8
Gruhl, J. and Welch, S, Women as Criminal Defendants: A Test for Methods of responding to crimes in practice will be discussed in detail in
Paternalism, (Sep., 1984), Vol. 37, 3 The Western Political Quarterly. pp. subsequent sections of this paper.
9
456-467. P: 1. Oakley, A, Gender and Society, 1984, Adlershot Gower, London. P: 56.
5 10
See Feinman, C. Women in the Criminal Justice System, 1994, Praeger Approximately 70% to 90% of females in Pakistan are subjected to
Publishers, Westport. PP: 15-17. domestic violence. See Crime or Custom? Violence against Women in
6
Morris, A, Women, Crime & Criminal Justice, 1987, Basil Blackwell Inc. Pakistan, Human Rights Watch 1999, p. 1.
24
International Journal of Law

they live.11 In fact, violence against females by their male categorized as 'mad,' not 'bad'.21 Non-conforming women may
relatives is something that may be accepted by the society and be those who engage in activities associated with men, or those
the family if she has been considered to have violated the who are likely to commit crimes. These women, as Bottoms
traditional gender roles in her society. Nagina Bibi, a seventeen (1996) stated, are doubly damned and doubly deviant.22
year old girl from Pakistan, was engaged by her father to her Furthermore, it has been argued that white and black females
cousin, but her brother wanted her to marry his wife's brother. occupy different rungs on the social hierarchy. Nooruddin
On April 14, 1999, after her brother saw her talking to the (2006) stated that white women in the USA are generally
cousin chosen by their father on the street, he and another considered more valuable than black women, and they are
brother reportedly tied her with a rope to a wooden post in their accorded a different set of values and roles than are black
home, sprinkled kerosene over her and set her on fire. She was women.23 Within some societies, white women have been
taken to a hospital with burns on 75% of her body, and after 23 considered as ‘gentle creatures’ in need of protection, while
days, she died. Nagina’s family claimed that this was due to a black women have been characterized as lazy, promiscuous,
stove explosion, but she told doctors that her brother had set and irresponsible.24 As a consequence, white and black females
her on fire because she had disobeyed him.12 In such societies, are treated differently by their society and within the legal
males believe that if a female is defiant, then there is nothing system. For example, white women who ‘protect themselves’
morally or legally wrong with beating or even killing her. If from violent attackers will be treated with leniency, while
men do engage in violence, they justifiably believe that they black females “are more likely to be blamed for getting into
will not be prosecuted.13 In such societies, the unequal position such a situation and for ‘bringing it’ on themselves.” 25 Based
of women results from social oppression as well as economic on these perceptions, it is likely that white women who kill
dependency on men. A woman who attacks her alleged batterer their batterers will be treated less severely than black ones if
in these societies is considered to have violated “not just they have done the same. 26 This point will be clear when the
traditional gender roles of passivity and care-giving, but also a relevant cases will be discussed in the next part of this paper.
sexual hierarchy that grants men power over her.”14 This is a
major cause of violence against women; for instance, five Gender and the Legal System
Pakistani women per day are killed, and two women per day, in As a significant improvement in responding to violent crimes
the region of Punjab15 alone, are kidnapped.16 in England and Wales, new instructions issued to officers in a
On the other hand, it is commonly accepted that murders of Force Order in June 1987 have been implemented.27 This Order
male batterers by female victims of domestic violence be considers assaults that occur in the home to be as serious as
treated more seriously by both the legal system and society. 17 assaults that occur in public. Also, it considers the importance
In most societies when a man kills his wife or his daughter or of police support to victims and connection with local agencies,
his sister, it is acceptable by the public. While if a woman kills and reminds officers of their powers of arrest. 28 The Home
her violent husband, she will be definitely charged. It is widely Office Circular of 60/1990 gave the police guidance that
considered that women who commit crimes have been encouraged a quick and effective response in arresting suspects
perceived as males that have the worst characteristics of if the protection of the victim required it. However, follow-up
females. Lombroso and Ferrero (1985) [26] emphasized that studies have not been very positive. For example, in a study
women who commit crimes are seen as genetically more male conducted in Streatham, London in 1989, only 204 suspects
than female, therefore biologically abnormal. 18 So females who were arrested out of 446 domestic violence-related crimes.29
did not act according to pre-defined standards were diagnosed 105 of those arrested (52%) were charged, 66% received two
as pathological and requiring treatment; they were to be 'cured' months in prison, and 5% received no further action. 30
or 'removed'.19 Moreover, it is commonly believed that women Nevertheless, Force Order 1987 has been recognized as an
who commit crimes, particularly serious crimes, are either evil effective tool against domestic violence, since studies
or mentally ill when they commit an offense. conducted prior to the Order showed that domestic violence
In addition, female defendants are viewed differently, as it is was regarded by the police as problematic and a waste of
believed within some societies that women who conform are time.31 Also, the studies considered that arrest was rarely used
pure wives, mothers and respectful daughters who benefit and was not considered a practical means of dealing with the
society.20 Therefore, if they commit a crime, they will be

11
Nooruddin, I. BLIND JUSTICE: ‘SEEING’ RACE AND GENDER IN 21
Lloyd, A. Doubly Deviant, Doubly Damned, 1995, Penguin, Sydney. P: 36.
22
CASES OF VIOLENT CRIME. available from: Bottoms, A, Sexism and the Female Offender, 1996, Gower Publishing,
http://psweb.sbs.ohiostate.edu/faculty/nooruddi/research/nooruddin.pg2007 Sydney. P: 1.
23
.pdf. Page: 4. Retrieved Nov 24, 2016. Nooruddin, Supra note 11. Page: 5.
12 24
Honor Killings in Pakistan, Amnesty International. From: Ibid.
25
http://www.aiusa/women. Retrieved Nov 26, 2016. Ibid.
13 26
Bettencourt, A, VIOLENCE AGAINST WOMEN IN PAKISTAN, Spring Ibid.
27
2000, Human Rights, Advocacy Clinic, Litigation Report. P: 4. Available See Hanmer, J, Women and Policing in Britain, in Women, Policing, and
from: http://www.wluml.org/node/7334. Retrieved Nov 24, 2016. Male Violance, 1989, Hanmer, Radford and Stanko, Routledge. Also,
14
Nooruddin, Supra note 11. Page: 4. Grace, S, Policing Domestic Violence in the 1990s, 1995, Home Office
15
A region where violence against women in Pakistan is common. Research Study No. 139, HMSO.
16
Human Rights Commission of Pakistan’s 1999 Report, 28
Edwards, Supra note 2, P: 193.
29
http://www.hrcp.cjb.net. Buchan, I. and Edwards, Susan, S. M, Adult Cautioning for Domestic
17
Nooruddin, Supra note 11. Violence, Police Requirements Support Unit, 1991, Home Office Science
18
Lombroso, C. and Ferrero, W, The Female Offender, 1985, Fisher Unwin, and Technology Group, June. P: 84.
30
London. P: 43. Edwards, Supra note 2.
19 31
Ibid. Edwards, S. M and Armstrong, G, Policing Prostitution: A Profile of the
20
Feinman, Supra note 5. P: 16. SOS, July-Sept 1988, Police Journal. PP: 209-219.
25
International Journal of Law

problem. 32 Many officers believed that women were judges are men. Men have orthodox views about women and
responsible for male violence, ‘because women have sharper how they should behave. Therefore, they tend to be less harsh
tongues than men, and they go on and on.’ 33 with them. Moreover, the main expectation of many studies
Gender’s effect on the way that the law and society respond to was that male defendants who were accused of killing women
different kinds of crimes can be seen from the fact that police were more likely to be convicted and less likely to receive a
hold stereotypical attitudes towards females and the crimes reduced charge.39
they commit. Also, it can be seen from courts practice and In considering how gender affects the way that the law
sentencing patterns that women are jailed for minor offenses responds to different crimes, it is important to consider the
and “that the ‘evil woman’ thesis and the ‘double deviance, practices of the police, the crown prosecutor’s service, and the
double jeopardy’ thesis are used against women in court.” As courts. The effectiveness of the criminal justice system
mentioned above, criminal laws broadly apply equally to remedies depends on their implementation in practice. 40
women and to men. However, sex and gender sometimes have
significance as legal categories in relation to criminal acts. For  Gender and Police Practices
instance, male homosexual acts have at certain times been In dealing with different kinds of crimes, some studies have
defined as criminal in most western countries, while lesbian suggested that the offenders’ character and attitude is a key
acts have not. Also, the law often treats the prostitution factor which influences the decision made by the police. For
activities of males and females differently. Under English example, women were found to be more likely to show
common law, for example, women charged with an offense behavior that the police would not consider as offensive. 41 It
committed in the presence of their husbands (except murder has been considered in many studies in the UK and in the USA
and treason) could rely on the presumption that they acted that females see the police as people who will help them, while
under compulsion34 until this was abolished in 1925. males see them in a more cynical light. 42 The police simply
Furthermore, it was widely believed that women must be categorize women as non-serious and non-persistent offenders;
protected from criminal acts, rather than held responsible for therefore, they are less likely to be arrested by the police. 43 It
them.35 has been demonstrated that the police deal with women more
Women, by and large, are not expected to be violent. 36 Women leniently than they do with men; also, it has been found that
are more in need of protection and they are mostly seen as less women are cautioned rather than arrested for indictable
culpable and less likely to be recidivists; they therefore should offences more often than men.44
be treated more leniently.37 In accordance with this hypothesis, In accordance with the chivalry hypothesis, on the one hand,
enforcement officers and judges are less likely to see women women are in need of protection because they are seen as
defendants as ‘posing a threat’ to society and they believe that physically and emotionally weak, and are therefore considered
those defendants need to be protected, thus subsequently to be protected by the criminal justice system rather than
affecting their sentencing decision. Many judges think punished.45 On the other hand, males are considered to be in a
carefully before deciding to send a female to prison. 38 protector position for women and therefore should not be
In fact, such a hypothesis has been supported by research, expected to harm them. Accordingly, if they do so, they will
which finds that women are less likely than men to commit receive highly punitive sentences. 46 In fact, a number of
crimes, especially violent crimes. Perhaps one of the main researches have supported this hypothesis by finding that men
reasons for the fact that the crime rate for women is very low were treated harshly compared with women. 47 However,
compared to men is that most law enforcement officers and although the sex of an offender plays a significant role in
police decisions, it has been argued that the fate of women
32
within the CJS in regard to crimes depends on how well a
One Police Officer stated (Interview 12, North London sample 1985) that
‘we don’t want to take action in these occasions anyway.’ Police were
woman can represent the traditional stereotypical female role.48
concerned that the victim was likely to withdraw the allegation. ‘…if she Lloyd (1995) [25] stated that women often use their ‘femininity’
withdraws it goes down the drain, that’s the job.’(interview 13, North to their advantage, which makes it very difficult to argue equal
London sample). ‘…if you were walking in the street and some one rights for both sexes.49 Moreover, the nature of the offence has
smashed you in the eye, I would arrest. If you were walking in the street
and your wife hit you, I wouldn’t.’ (Interview 16, North London sample).
been found more effective and beside it the offender sex was
Edwards, Supra note 2. P: 196. found weak. For example, as women, prostitutes complained
33
Edwards, Supra note 2. P: 196. about being treated seriously and being subjects of
34
Mannheim, H, Comparative Criminology, 1965, Vol. 1, London: harassment.50 Also, Heidensohn (1994) has found that rape
Routledge & Kegan Paul. PP: 691-693.
35
Bardsley, B, Flowers in Hell: an Investigation into Women and Crime,
39
1987, Pandora Press, London. P: 37 Curry, Lee and Rodriguez, Supra note 40 and Baumer, E. P, Messner, S. F
36
Naylor, B, Women's Crime and Media Coverage: Making Explanations, and Felson, R. B, The Role of Victim Character and Victim Conduct in the
1995. Oxford University Press. P: 78. Disposition of Murder Cases, 2000, 17 Justice Quarterly. PP: 281-307.
37 40
See Gruhl and Welch, supra note 4; Spohn, C, Gender and Sentencing of Edwards, Supra note 2. P: 192.
41
Drug Offenders: Is Chivalry Dead? 1999, 9 Criminal Justice Policy Morris, Supra note 6.
42
Review. PP: 365-399; Spohn, C and Beichner, D, Is Preferential Treatment Mawby 1980 in Ibid.
43
of Female Offenders a Thing of the Past? A Multisite Study of Gender, Ibid.
44
Race, and Imprisonment, 2000, 11 (2) Criminal Justice Policy Review. PP: 12% of women aged twenty-one or over received cautions compared to
149-184; Spohn, C, Welch, S, and Gruhl, J, Women Defendants in Court: 10% of men in 1985. from: Morris, Supra note 6.
45
The Interaction between Sex and Race in Convicting and Sentencing, 1985, Curry, Lee and Rodriguez, Supra note 40. P: 323.
46
66 Social Science Quarterly. PP: 178-185. Ibid.
38
“Interviews with judges in Massachusetts by Daly in 1989 revealed that 47
Ibid.
48
judges worried about the social costs of imprisoning women, since they Nooruddin, Supra note 11. P: 6.
49
expected that women were likely responsible for caring for any dependents Lloyd, Supra note 22. P: 56.
in the family.” Daly, K, Rethinking Judicial Paternalism: Gender, Work- 50
Heidensohn, F. Women & Crime, 1985, Macmillan Publishers Ltd. PP:
Family Relations, and Sentencing, 1989, 3 (1) Gender & Society. P: 9-36. 101-103.
26
International Journal of Law

victims were being disbelieved and aggressively questioned by are more likely to receive long-term prison sentences.64
the police.51 However, some argue that sentencing patterns of women
In addition, it has been considered that police decisions were offenders demonstrate that they are treated harshly. A report
significantly influenced by the factors of race and class. 52 In published by the National Association of Probation Officers
one case a police officer stated, “We had one Irish fellow living emphasized that in 1994, only 11% of males were jailed for
with a black girl, she’s got a baby by someone else, and now theft compared to 23% of females. Moreover, 35% of the
she’s expecting his baby. She wanted to go out at night females who were jailed had no previous convictions,
‘clubbing’. He objected. The house was a tip. I wiped my feet compared to 12% of males.65 Also, 53% of women prisoners
as I walked out. That’s how bad it was. It’s quite obvious she had been convicted of two or fewer offences compared to 23%
doesn’t want to know. He whacked her and we didn’t arrest of men.66 One of the main reasons behind this hypothesis is
him. She was making his life Hell! Nothing to be gained from that some offences are not expected to be committed by
arresting him.”53 females. In other words, they are observed to be atypical of
It is important to bear in mind, moreover, that women who offending women. 67
experience domestic violence do not often report it to the Because of the fact that it is considered inappropriate for
police. It has been found that the police are often contacted as females to commit violent acts such as armed robbery, when
the very last option. 54 The reasons for women’s silence have they do so, it was found that they were dealt with more
been widely recognized in the literature. For instance, women punitively.68 The thesis that has been used here is that of the
are discouraged from reporting from feelings of shame and “evil woman,” which suggests that the female has
from a belief that the police will do very little to help. In the compromised her role expectations by committing an offense
UK, it has been found according to research that only 75% of which is not seen as appropriate to offending women. Thus,
cases are reported to the police by the victims. 55 Furthermore, they are treated more negatively. 69 In the cases of Sarah
it has been found that witnesses respond negatively to the Thornton, who is a female, and R. V. Palmer,70 who is a male,
crimes they have witnessed.56 For example, Kitty Genovese of the facts were mostly the same, but the outcomes in court were
New York was killed by her husband, watched by witnesses different. Sarah was convicted and received a life sentence for
who thought it was none of their business. 57 the offense of murdering her evil husband. She argued that it
was an accident; she sharpened a kitchen knife, pointed it at her
 Gender and Courts Practice violent husband, expecting him to knock it away, and
In considering the effect of gender on the treatment of accidentally stabbed and killed him. This was interpreted as
defendants in the criminal justice process, female offenders indicative of her intention to kill him. She told one of her
were found more likely to be released even before the trial and friends that “I am going to kill him” a few months before the
they were less likely to be sentenced severely. 58 The impact of incident, which was not treated as an expression of
gender in the way that the law and society respond to different exasperation, but as an indication of intent. She stated that, "I
kinds of crimes can be clearly seen in court decisions. didn't walk in there with the intention of stabbing him. I just
First of all, criminality in men was a common feature of their wanted to show him how far he had driven me."71 In contrast,
natural character, whereas women’s biologically-determined in the case of R. V. Palmer,72 the appellant stabbed his wife and
nature was antithetical to crime.59 On the one hand, it has been killed her. He argued that he brought a knife from the kitchen
argued that, because of the fact that women are seen as less of a only to frighten her, but accidentally killed her. Unlike
risk to society, when they do commit a crime, they will be Thornton, he was charged with manslaughter, not murder.
treated leniently.60 Albonetti (1991)[1] considered this as one Then, the Appeals Court reduced his sentence from seven years
important impact of offender gender on judges and jury in to five. Thornton, meanwhile, continues to serve her life
making lenient decisions;61 when the offenders are female, sentence.
there should be no or less certainty. 62 On the other hand, Furthermore, Heidensohn (1985) [22] argues that extreme
viewed as more culpable for their crimes and posing a greater harshness is experienced against women in the courts because
risk, males would be treated more harshly. 63 For instance, men they are, as offenders, very rare due to their low levels of crime
and the rarity of ever appearing in court; therefore, it is likely

51
Ibid.
52
Morris, Supra note 6.
53 64
Buchan and Edwards, Supra note 30. P: 85. Steffensmeier, D, Ulmer, J, and Kramer, J. H, The interaction of race,
54
Edwards found that 50% of women in shelters have never contacted the gender, and age and
police, and many women tell no one at all. Radzinowicz, L and King, J, criminal sentencing: The punishment cost of being young, Black, and male,
The Growth of Crime, 1977, London, Penguin. P: 38. 1998, 36 Criminology.
55
Mawby, R, Bystander Responses to the Victims of Crime: is the Good PP: 763–797.
65
Samaritan Alive and Well? 1985, Vol. 19, 1-4 Victimology. PP: 461-77. P: Cited in The Guardian 10.7.95.
66
461. Also see Edwards, Supra note 2. P: 192. Cited in The Guardian 19.9.95.
56 67
Witness reporting accounted for 25% of the crimes reported to the police. In Edwards, S, Women on Trial, 1984, Manchester University Press, New
Radzinowicz and King, Supra note 41. Hampshire. Also, see Morris, Supra note 6. it was found that females were
57
Mawby, Supra note 42. Also see Edwards, Supra note 2. P: 192. refused bail because they committed crimes which were not expected to be
58
Gruhl and Welch, supra note 4. P: 1. committed by women.
59 68
Lombroso, Supra note 19. Nagal 1981 in Supra note 6.
60 69
Albonetti, C.A, An integration of theories to explain judicial discretion, Ibid.
70
1991, 38 Social Problems. PP: 247-266. (1913) 2 KB 29.
61 71
See Steffensmeier, D, Kramer, J. H, and Streifel, C, Gender and Yarwood, J. D. DOMESTIC VIOLENCE Selected media references and
imprisonment decisions, 1993, 31 Criminology. PP: 411-446. sources relating to male victimization, December 2003, Dewar Research.
62
Curry, Lee and Rodriguez, Supra note 40. P: 324. From: http://www.dewar4research.org. Retrieved Nov 24, 2016.
63 72
Ibid. (1913) 2 KB 29.
27
International Journal of Law

that more of them will be convicted for their offences. 73 He victimizing females were punished more harshly than any other
believes that women are understood less than men by the victim gender/offender gender combination. 86 Curry et al
courts, in terms of both their culture and family structure; (2004) found that the longest sentences are meted out to male
therefore, assumptions lead to stereotypes about "appropriate" offenders who victimize females.87 Moreover, in the cases
behaviour, and by offending against their traditional sex roles, where white females were victims of homicide, it has been
they are observed as both "rule breakers and role deviants."74 found that offenders were more likely to receive death
Among women themselves, it has been found that divorced and sentences.88 Also, recent research in the USA found that in
separated women received relatively severe sentences, as did most cases where the victim was a white female, sentences
women who came from deviant family backgrounds. This is were harsher than in other cases.89 Nooruddin (2006) stated
due to the fact that these women are not considered that “the sexual stratification hypothesis argues that relations
respectable.75 As a concrete example, in the cases of Khoua she between black men and white women violate the dominant
and Andrea Yates, there was a general belief that they were group’s power most directly.”90 Accordingly, abuse of white
treated differently by the criminal justice system in the USA females by black men is considered particularly heinous in the
because of their backgrounds. Both of these women are USA, and therefore treated more severely.91 Thus, a white
American citizens, but they came from different backgrounds. female who reacts against a black male batterer would be seen
Khoua her was a twenty-four-year-old working mother as most worthy of ‘protection’ by society, resulting in the fact
separated from her husband and an immigrant who had been that she would be treated least harshly by the courts. 92 Also, if
living in the United States for several years. 76 She was a white male batterer is killed by a black female, she will be
sentenced to fifty years imprisonment for the second-degree treated harshly by the court, in accordance with such a
murder of her six children. 77 Andrea Yates was a married, hypothesis.93 However, some studies found no direct effect of
thirty-six-year-old, white, middle-class, fundamentalist victim gender on length of sentence. 94 It has been stated that
Christian homemaker. She drowned her five children in a victim gender may not affect the chances of imprisonment,
bathtub. She was found guilty of two capital murder charges particularly for violent crime, but it may have a significant
and not guilty of killing her other three children on grounds of impact on sentencing length.95
insanity.78 Her lawyer argued that she was suffering from
postpartum depression at the time of the murders. 79 In the end, Conclusion
the jury recommended a sentence of life in prison instead of the Despite the fact that laws on paper deal with men and women
death penalty.80 Her lawyers lodged an appeal81 and won. She equally, it is not guaranteed that male and female defendants
will now be eligible for parole in 2041.82 The reduction in will be treated equally. The way that both society and the legal
penalty on appeal has been seen as a degree of leniency in the system respond to different kinds of crimes—elements such as
punishment of her crimes.83 political statutes, class, ethnicity, physical and mental disability
In addition, it is important, in order to consider how gender and age—may play significant roles.
affects the way that the law responds to different crimes, to In cases where women are accused, the police distinguish
know whether victim gender interacts with offender gender. 84 It between two kinds of women, ‘good mothers’ and ‘bad
has been found that there was interactive effect between victim mothers’. They find it difficult when the former are accused
gender and offender gender,85 in that males convicted of and the opposite with the latter.96 This may justify the
argument that it is not the gender of the offender which
73
Heidensohn, Supra note 55. influences sentencing, but the female’s role within the family. 97
74
Ibid. P: 102. It has been found that in cases where females could prove their
75
Morris, Supra note 6. respectability by showing that they had no alcoholic or
76
Her had been in the United States since 1988. See Lourdes Medrano Leslie
& Curt Brown, Mother: Killing Kids Saved Them From Suffering, STAR
psychiatric history, they often received a less punitive
TRIB. (Minneapolis-St. Paul), Jan. 9, 1999, at 1A [hereinafter Mother:
86
Killing Kids]. Nooruddin, Supra note 11. Page: 7.
77 87
Mother Gets Fifty Years for Killing Six Children, TIMES-PICAYUNE Curry, Lee and Rodriguez, Supra note 40. P: 337.
88
(New Orleans), Dec. 1, 1998, at A8. Williams, M.R and Holcomb, J. H, The Interactive Effects of Victim Race
78
Bill Bickel, Andrea Yates, at and Gender on Death Sentence Disparity Findings, 2004, 8 (4) Homicide
http://crime.about.com/library/blfiles/blandreayates.htm. Retrieved Nov 27, Studies. PP: 350-376.
89
2016. Stauffer, A. R, Smith, M. D, Cochran, J. K, Fogel, S. J and Bjerregaard, B,
79
Therapist: Texas Mom Not Ready for Trial, NEWSDAY, Sept. 20, 2001, at The Interaction Between Victim Race and Gender on Sentencing Outcomes
A30. in Capital Murder Trials: A Further Exploration, 2006, 10 (2) Homicide
80
Christian, C, Jury Gives Yates Life Term with No Parole for Forty Years, Studies. PP: 98-117.
90
HOUS. CHRON., Mar. 16, 2002, available at: Nooruddin, Supra note 11. Page: 6.
91
http://www.chron.com/cs/CDA/story.hts/special/drownings/1298197. Williams and Holcomb, Supra note 89.
92
Retrieved Nov 27, 2016. Nooruddin, Supra note 11. Page: 6.
81
Teachey, L, Lawyers Submit Notice of Appeal in Yates’s Murder 93
Ibid.
94
Conviction Case, HOUS. CHRON., Apr. 4, 2002, available at: Myers (1979) has found no effect of victim gender on the sentencing
http://www.chron.com/cs/CDA/story.hts/special/drownings/. Retrieved decision at all. Myers, M. A, Offended Parties and Official Reactions:
Nov 24, 2016. Victims and the Sentencing of Criminal Defendants, 1979, 20 Sociological
82
Yates Family Points Fingers, (Mar. 18, 2002), at: Quarterly. PP: 529-540
95
http://www.cbsnews.com/stories/2002/03/ 14/national/main503693.shtml. Curry, Lee and Rodriguez, Supra note 40. P: 338.
96
Retrieved Nov 24, 2016. Carlen (1983) in her study interviewed 15 Scottish sheriffs and found that
83
Nooruddin, Supra note 11. Page: 3. all individuals disliked imprisoning women and felt uneasy when a woman
84
Curry, Lee and Rodriguez, Supra note 40. P: 336. was accused; however, to overcome these unsettled feelings, the sheriffs
85
Glaeser, E.L. and Sacerdote, B, The determinants of punishment: differentiated between "good" and "bad" mothers, stating, "If she's a good
Deterrence, incapacitation and vengeance, 2000, (Discussion Paper 1894). mother, we don't want to take her away. If she's not a good mother, it
Harvard Institute of Economic Research. Cambridge, MA: National Bureau doesn't really matter"(Carlen PG 67 (1983)).
97
of Economic Research. Morris, Supra note 6.
28
International Journal of Law

sentence.98 Kennedy (1995) argues that the “Madonna” is more 15. Edwards SM, Women on Trial, Manchester University
acceptable in court than a “whore."99 A woman who can show Press, New Hampshire, 1984.
remorse and passivity, which are approved feminine traits, will 16. Feinman C. Women in the Criminal Justice System,
be treated more leniently than a woman who does not show Praeger Publishers, Westport, 1994.
these characteristics. Furthermore, Morris (1987) [30] pointed 17. Frohmann L, Mertz E. Legal Reform and Social
out that Magistrates’ Courts took into consideration the Construction: Violence, Gender, and the Law, Autumn
women’s domestic circumstances, such as the responsibility for Law & Social Inquiry. pp. 1994; 19(4):829-851.
children, when they decided sentences against them.100 18. Glaeser EL, Sacerdote B. The determinants of punishment:
From researches and cases that have been discussed, it has Deterrence, incapacitation and vengeance (Discussion
become clear that both the conviction and sentencing stages of Paper 1894). Harvard Institute of Economic Research.
criminal procedures are affected by the gender of victims and Cambridge, MA: National Bureau of Economic Research.
defendants, and, in general, female defendants are treated more 2000
leniently by the courts.101 Certain trends and patterns in female 19. Grace, S. Policing Domestic Violence in the Home Office
criminality, as compared with male criminality, have long been Research Study HMSO. 1990-1995, 139.
observed. Namely, women commit a small percentage of all 20. Gruhl J, Welch S. Women as Criminal Defendants: A Test
crime, crimes committed by females are less serious, rarely for Paternalism, The Western Political Quarterly. 1984; 37
professional and less likely to be repeated, and, consequently, (3)456-467.
women formed a small proportion of prison populations. 21. Hanmer J. Women and Policing in Britain, in Women,
Policing, and Male Violance, Hanmer, Radford and
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Gender, and the Problem of Equal Treatment, Social Sociological Quarterly. 1979, 20.
Forces. PP: 1987, 66:152-175. 33. Naylor B. Women's Crime and Media Coverage: Making
12. Daly K, Rethinking Judicial Paternalism: Gender, Work- Explanations, 1995. Oxford University Press.
Family Relations, and Sentencing Gender & Society. P: 34. Nooruddin, I. BLIND JUSTICE: ‘SEEING’ RACE AND
1989; 3(1):9-36. GENDER IN CASES OF VIOLENT CRIME. Available
13. Edwards SM. Sex and Gender in the Legal Process, from:
Ashford Colour Press, 1996. http://psweb.sbs.ohiostate.edu/faculty/nooruddi/research/n
ooruddin.pg2007.pdf.
14. Edwards SM, Armstrong G. Policing Prostitution: A 35. Oakley A, Gender, Society, Adlershot Gower, London,
Profile of the SOS, July-Sept Police Journal. PP: 1988, 1984.
209-219. 36. Radzinowicz L, King J, the Growth of Crime, London,
Penguin, 1977.
98
Women who had previous offenses were given lenient sentences compared 37. Spohn C, Beichner D, Is Preferential Treatment of Female
to those who had no previous convictions but were not considered decent Offenders a Thing of the Past? A Multisite Study of
(Kruttschnitt 1982 in Morris, Supra note 6. Gender, Race, and Imprisonment, Criminal Justice Policy
99
Cited in The Guardian 14.9.95.
100
Morris, Supra note 6.
Review. 2000; 11(2):149-184
101
Nooruddin, Supra note 11. Page: 8.
29
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38. Spohn C, Gender, Sentencing of Drug Offenders: Is

Chivalry Dead? Criminal Justice Policy Review. 1999,
9:365-399.
39. Spohn C, Welch S, Gruhl J, Women Defendants in Court:
The Interaction between Sex and Race in Convicting and
Sentencing, Social Science Quarterly. 1985, 66:178-185.
40. Stauffer AR, Smith MD, Cochran JK, Fogel SJ,
Bjerregaard B, The Interaction Between Victim Race and
Gender on Sentencing Outcomes in Capital Murder Trials:
A Further Exploration, Homicide Studies. PP: 2006; 10
(2):98-117.
41. Steffensmeier D, Kramer JH, Streifel C, Gender and
imprisonment decisions, Criminology. PP: 1993; 31:411-
446.
42. Steffensmeier D, Ulmer J, Kramer JH, The interaction of
race, gender, and age and criminal sentencing: The
punishment cost of being young, Black, and male,
Criminology. 1998, 36.
43. Teachey L. Lawyers Submit Notice of Appeal in Yates’s
Murder Conviction Case, HOUS. CHRON., 2002, 4,
available at:
http://www.chron.com/cs/CDA/story.hts/special/drowning
s/.
44. The Guardian: (10.7.95), (19.9.95) and (14.9.95).
45. Therapist: Texas Mom Not Ready for Trial, NEWSDAY,
2001, 20-30.
46. Weldon SL, Women’s Movements, Identity Politics and
Policy Impact: A Study of Policies on Violence against
Women in the 50 U.S. States, 2006a, Vol. 1, 58 Political
Research Quarterly.
http://www.du.edu/intl/humanrights/violencepkstn.pdf.
47. Williams, M.R and Holcomb, J. H, The Interactive Effects
of Victim Race and Gender on Death Sentence Disparity
Findings, Homicide Studies. PP: 2004; 8(4):350-376.
48. Yarwood JD. DOMESTIC VIOLENCE Selected media
references and sources relating to male victimization,
2003. Dewar Research. From:
http://www.dewar4research.org.
49. Yates Family Points Fingers, 2002. at:
http://www.cbsnews.com/stories/2002/03/
14/national/main503693.shtml.
50. Cases:
51. Andrea Yates, from: Mother Gets Fifty Years for Killing
Six Children, TIMES-PICAYUNE (New Orleans), 1998,
8.
52. Khoua Her, from: Lourdes Medrano Leslie & Curt Brown,
Mother: Killing Kids Saved Them From Suffering, STAR
TRIB. (Minneapolis-St. Paul), 1999. [hereinafter Mother:
Killing Kids].
53. Kitty Genovese, from: Edwards, Supra note 2. 192.
http://www.oldkewgardens.com.
54. Nagina Bibi, from: Honor Killings in Pakistan,” Amnesty
International. From: http://www.aiusa/women. Retrieved
2007.
55. Palmer RVKB. 1913 29(2)
56. Sarah Thornton, from: Yarwood JD DOMESTIC
VIOLENCE Selected media references and sources
relating to male victimization, December 2003, Dewar
Research. From: http://www.dewar4research.org.
Retrieved. 2007.

30
International Journal of Law

International Journal of Law

ISSN: 2455-2194, RJIF 5.12
www.lawresearchjournal.com
Volume 3; Issue 1; January 2017; Page No. 31-35

Understanding the concept of ‘Sovereignty’

Swati Singh Parmar
Assistant Professor, Amity Law School, Amity University, Uttar Pradesh, India

Abstract
Sovereignty is one of the basic principles of state arrangement at global level and also one of the most poorly understood concepts
in international law. The interpretation of this principle is open to change across time and space in the backdrop of historical and
political contexts, offering full array of analysis.

Keywords: westphalian sovereignty, popular sovereignty, basket theory, chunk theory

1. Introduction fissiparous tendencies of feudalism in the form of a

Sovereignty is the central organizing principle of the system of miscellaneous assortment of petty lords. But the discovery of
states. However, it is also one of the most poorly understood the New World dealt a death blow to feudalism, and the
concepts in international relations. This confusion emerges invention of gunpowder permitted vigorous kings to raise
from at least two sources. powerful armies without the approval of baronage. Within the
 First, as will be discussed below, sovereignty is in fact a space of 50 years powerful nation-states emerged in England,
relatively recent innovation connected to the emergence of France and Spain and a little later in Sweden, Russia and other
the nation-state as the primary unit of political parts of Europe [3]. The kings refused to recognize any superior,
organization. both within and without, and jurists came to their aid with a
 Second, what is more, a number of contemporary issues legal theory which served both as a weapon of defence and as a
have placed increasing limits on the exercise of sovereign justification for the claim of royal supremacy.
authority. Thereby originated the notion of sovereignty in order to help
These two factors raise questions about the fixity of the kings meet an intolerable situation. The concept of sovereignty
concept of sovereignty often assumed by international relations in the European feudal times was multipolar in nature as the
scholars. A more sophisticated view of sovereignty now supreme authority was not reposed in a single seat: it had twin
envisions states and non-state actors as engaged in a continual heads of Pope and Emperor.
process of renegotiating the nature of sovereignty. Through the middle ages alternative feudal arrangements
Sovereignty has also been explored as a “social construct.” governed Europe and city-states lasted up until the modern
According to this view, “Numerous practices participate in the period. The development of a system of sovereign states
social construction of a territorial state as sovereign, including culminated in Europe at the Peace of Westphalia in 1648. This
the stabilization of state boundaries, the recognition of agreement essentially allowed the ruler to determine the
territorial states as sovereign, and the conferring of rights onto religion within his borders, but it also represents both the
sovereign states [1].” This approach tells that no particular internal and external aspects of sovereignty. (Internal
characteristics in here in the concept of sovereignty, but that its sovereignty means supreme authority within one’s territory,
nature depends very much on the customs and practices of while external sovereignty relates to the recognition on the part
nation-states and international systems [2], which practices of all states that each possesses this power in equal measure.)
could change over time. As Europe colonized much of the rest of the world from the
fifteenth through the nineteenth centuries, the state system
2. Historical Background spread around the globe. Through this time, sovereign authority
Origin of the Concept was clearly not extended to non-Europeans. However, the
The international system was not always arranged in terms of process of drawing boundaries to clearly demarcate borders
sovereign states. It is interesting to note that the medieval would be critical for defining sovereign states during
world knew nothing of national sovereignty. Theoretically, decolonization.
there existed Christendom, with its twin heads of Pope and The second, current, movement appears to be the gradual
Emperor, a unifying concept which exercised considerable circumscription of the sovereign state, which began roughly
influence upon political and philosophical thinking until the after World War II and continues to the present. Much of
close of the middle Ages. After the decline of the authority of international law, at least until WWII, was designed to
the church and the long struggle between the Pope and the reinforce sovereignty. However, driven by the horrors of the
Emperor, Christendom disintegrated. Out of this chaos Nazi genocide and the lessons of the Nuremberg war crimes
emerged nation-states, with their monarchs engaged in a tribunal, the society of states forged a series of agreements
struggle against all external and internal adversaries. While under the auspices of the United Nations that committed states
externally they had to fight the still lingering influences of the to protect the human rights of their own citizens, a restriction
Empire and the Papacy, internally they were troubled by the on authority whiting the state. The post-war period also saw the
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International Journal of Law

growth of intergovernmental organizations to help govern however, came later to be distorted, and sovereignty came to be
interstate relations in areas ranging from trade and monetary identified with absolute power above the law.
policy to security and a host of other issue areas. At the same The whole purpose of Bodin, as we have seen, was to establish
time, much of the non-Western world gained their order.
independence in the decades after World War II, setting up a
scenario in which many of the new states were not fully iii) Thomas Hobbes
sovereign [4]. The pursuit of the same purpose led Hobbes, writing in the
midst of a civil war and political crisis in England, to take the
3. Early Thinkers concept of sovereignty to an extreme position. In his
i) Machiavelli Leviathan, published in 1651, Hobbes stated that men needed
Although he did not expound the theory of Sovereignty, for their security “a common power to keep them in awe and to
Machiavelli, in his work, The Prince, published in 1532, direct their actions to the common benefit” and that the person
suggested the new theory of the State and the methods of or body in whom this power resided was the sovereign. Law
securing its advancement. He discounted all restraints upon the neither made the sovereign nor limited his authority; it is might
ruler, legal or moral, and pleaded for an absolute and that made the sovereign, and law was merely what he
irresponsible control exercised by one man who should commanded. Further, since the power that was the strongest
embody in himself the unity, strength and authority of the State could not be limited by anything outside itself, it followed that
[5]
. He paved the way for other writers. In the words of sovereignty must be absolute, illimitable and irresponsible.
Machiavelli: Hobbes did realize that such power concentrated in a single
“Those who have been present at any deliberative assemblies centre was unpleasant to live under, but argued that it was the
of men will have observed how erroneous their opinions often lesser of the two evils, life and men being what they were, and
are; and in fact, unless they are directed by superior men, they compared to “the miseries and horrible calamities that
are apt to be contrary to all reason [6]. . . . . The only way to accompany a civil war of that dissolute condition of masterless
establish any kind of order there is to found a monarchical men” [10].
government; for where the body of the people is so thoroughly The hold of sovereignty had become so strong upon the
corrupt that the laws are powerless for restraint, it becomes thinking of that age that when it became obvious that the
necessary to establish some superior power which with a royal personal monarch no longer fitted the role, they started a hunt
hand, and with full and absolute powers, may put a curb upon for the “location” of sovereignty somewhere else. As Hobbes
the excessive ambition and corruption of the powerful. [7]” had said the absolute and uncontrollable power need not be
In sum, it was just the public interest that required an absolute vested in a single individual. It could be enjoyed by a group
type of sovereignty, which justified the use, by the prince, of like the British Parliament [11].
any kind of instrument, irrespective of its moral implications,
including force (“the stick”), bribery, or deceit. iv) John Locke and J.J. Rousseau
With the coming of constitutional government, Locke, and later
ii) Jean Bodin Rousseau, propounded the theory that the people as a whole
Jean Bodin, who is said to be-the first to have formulated this wore the sovereign, and in the eighteenth century, this became
theory in 1576 in his De Republica, was, like all other writers, the doctrine which was held to justify the American and French
deeply influenced by the circumstances of his time. His Revolutions [12]. But all that changed was the bearer of
preoccupation was merely to show the supremacy of the sovereignty. In substance, the claim of the sovereign remained
monarch over his own subjects in, his own territory and his unaltered. Whether the individual was called a subject or a
freedom from the control of other real or pretended sovereigns, citizen, the sovereign held unlimited sway over him. Thus, by
such as the Pope or the Emperor. He wanted to find out the the end of the eighteenth century, Europe found itself under the
secret of stability in a politically unstable world. Being a “incubus of a malign and sinister heritage” of juristic theory
sixteenth-century Frenchman and a patriot, his decision was which attributed to the State, a juristic entity, contrary to the
inevitably in favour of monarchy. He was convinced that a earlier sovereign, who was a personal monarch, an absolute
State, in order to be a State, must have one, and not more than and unlimited power above the law [13].
one, supreme power from which its laws proceeded.
He said expressly that the sovereignty of States comprised this v) John Austin
one thing, namely, to make and give laws to each of the In the international sphere, the national State claimed
citizens and subjects, and that since the sovereign made the sovereignty, in the sense of independence from outside control,
laws, he clearly could not be bound by the laws he had made with the same vigour as its absolutist predecessor. Thus, in
himself. In other words, sovereignty was essentially an internal 1832, in his Lectures on Jurisprudence, Austin defined
power - the power of a superior over an inferior [8]. sovereignty in the following terms:
But this did not mean that the sovereign was above all laws. As “If a determinate human superior, not in the habit of obedience
Bodin, defining sovereignty as an “absolute and perpetual to a like superior, receives habitual obedience from the bulk of
power vested in a Commonwealth”, added: a given society, that determinate superior is sovereign in that
“If we insist however that absolute power means exemption society, and the society (including the superior) is a society
from all law whatsoever, there is no prince in the world who political and independent.”
can· be regarded as sovereign, since all the princes of the earth At the time that the philosophy of sovereignty, in the modern
are subject to the laws of God and of nature, and even to sense of the term, first developed it was certainly conceived as
certain human laws common to all nations [9].” an absolute prerogative of the sovereign entity. The inherent
This theory of sovereignty, clearly circumscribed by law, dignity of the King was above the earthly idea of life and
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International Journal of Law

death, and also above the law. The conception of the sovereign the international system. As Krasner notes “the principles
power as the supreme entity, over the law and the life and associated within both Westphalian and international legal
death of the subjects, was shared by most theorists and sovereignty have always been violated [17]”, seemingly
philosophers from the early modern times, such as Nicolò suggesting that the Westphalian ideal never existed. The
Machiavelli, Jean Bodin, and Thomas Hobbes, although such frequent violation of sovereignty norms leads Krasner to deem
an idea was often the result of considerations of realpolitik them ‘organized hypocrisy’ as they are widely understood but
rather than of supernaturalism-based thoughts. frequently compromised [18]. This take on sovereignty appears
From these premises, the objective idea of sovereignty that fairly rigid and static because it treats sovereignty as a constant
emerged in early modern Europe was of a power concentrated with fixed characteristics, thus discounting the notion that it
in the hands of an authority bundled into a single entity, which can change. Therefore, for Krasner, sovereignty constitutes
governed a collectivity unified by the sharing of a single set of something that can be violated by greater intervention.
interests and confined within territorial borders. The sovereign Moreover, Glanville also refutes the myth on the basis that the
authority held supremacy in the collective interest. reality of sovereignty never matched the ideal anyway. He
When Europe came out of the Medieval darkness (politically argues that sovereign authority has always involved varied and
speaking), the internal absoluteness of sovereignty was not yet evolving responsibilities since it was first espoused [19]. He
reflected in its external dimension. In particular, the Holy rebuffs the idea that sovereignty was absolute and empowered
Roman Empire retained a nearly exclusive power over states with unfettered rights to do as they saw fit, instead
religious matters, and this allowed the Pope to interfere in the arguing that sovereign power has always been to a degree –
internal affairs of independent “sovereign” States. The checked.
transition from the “vertical” structure - headed by the Pope The Westphalian ideal of sovereignty was interpreted by the
and the Holy Roman Empire-to the “horizontal” structure of literal rule of interpretation. This may be attributable to the fact
independent sovereign States-which in principle were equal in that the ‘sovereignty’ was the crucial element in the peace
authority and legal legitimacy-was consolidated in 1648 with treaties of Westphalia. The literal rule of interpretation of the
the Peace of Westphalia (ending the Thirty Years’ War in concept of sovereignty support the positivist view of
Europe), which introduced the so-called Westphalian sovereignty as the positivist approach focuses on the natural
sovereignty. and ordinary meaning of the text.

4. The Westphalian Sovereign Ideal 5. ‘Popular’ Sovereignty

The traditional tale of sovereignty is summarised neatly by Popular sovereignty or the sovereignty of the people is the
Glanville, who suggests that it belief that the legitimacy of the state is created by the will or
“is repeatedly told…that sovereignty was established sometime consent of its people, who are the source of all political power.
around the 17th century (at the Peace of Westphalia…) and, It is closely associated to the social contract philosophers,
since that time, states have enjoyed ‘unfettered’ rights to self- among whom are Thomas Hobbes, John Locke and Jean-
government, non-intervention and freedom from interference in Jacques Rousseau. Popular sovereignty expresses a concept
internal affairs [14]” and does not necessarily reflect or describe a political reality
[20]
The sovereignty fairy tale holds that states, by virtue of being . It is often contrasted with the concept of parliamentary
sovereign, enjoy the inviolable right to non-intervention, non- sovereignty, and with individual sovereignty.
interference and self-government. Although, this ideal Benjamin Franklin expressed the concept when he wrote, “In
seemingly never existed; the discourse that it perpetuates is free governments, the rulers are the servants and the people
very significant. Without this ideal and the rights it supposedly their superiors and sovereigns [21].”
grants to states, it would be impossible to discuss whether The term “squatter sovereignty” is used by Jefferson Davis in
intervention violated sovereignty at all. Furthermore, this his book- A Short History of the Confederate States of
narrative also plays a significant role in entrenching the notion America. This probably derogatory term referred to the influx
that states have a right to do as they please within their of new citizens in order to manipulate the ultimate sovereign
territories and to do so without interference. votes.
Popular sovereignty is an idea that also dates to the social
Debunking the Myth contracts school (mid-17th to mid-18th centuries), represented
It is possible to refute the Westphalia myth fairly easily. This by Thomas Hobbes (1588–1679), John Locke (1632–1704),
essay will contest the myth on three grounds: firstly, the non- and Jean-Jacques Rousseau (1712–1778), author of The Social
intervention norm did not originate at Westphalia; secondly, Contract, a prominent literary work that clearly highlighted the
the myth has seemingly never matched reality due to frequent ideals of “general will” and further matured the idea of popular
cases of intervention; and thirdly, sovereign power has never sovereignty. The central tenet is that legitimacy of rule or of
been truly unchecked. The norm of non-intervention often law is based on the consent of the governed. Popular
associated with the Peace of Westphalia was actually codified sovereignty is thus a basic tenet of most democracies. Hobbes
at a later date during the mid-eighteenth century [15]. This and Rousseau were the most influential thinkers of this school,
undermines the rather dubious claim that “in the history of all postulating that individuals choose to enter into a social
sovereignty one can skip three hundred years without omitting contract with one another, thus voluntarily giving up some
noteworthy change [16]”. Philpot is here certainly guilty of rights in return for protection from the dangers.
perpetuating the Westphalian myth. A parallel development of a theory of popular sovereignty can
Moreover, the extent to which the ‘traditional’ conception of be found among the School of Salamanca (see e.g. Francisco
sovereignty, specifically the non-intervention aspect, existed in de Vitoria (1483–1546) or Francisco Suarez (1548–1617)),
practice is debatable. But it is unlikely it ever truly operated in who (like the theorists of the divine right of kings) saw
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International Journal of Law

sovereignty as emanating originally from God, but (unlike in theory and practice alike, and its connection to broader
those theorists) passing from God to all people equally, not concerns of social ontology.
only to monarchs. As per his interpretation, the concept of sovereignty gained its
Republics and popular monarchies are theoretically based on momentum after the age of great discoveries which was
popular sovereignty. However, a legalistic notion of popular heralded by the Spanish and the Portuguese explorers. These
sovereignty does not necessarily imply an effective, explorers discovered new found lands in the far flung areas of
functioning democracy: a party or even an individual dictator world. With discoveries, came the concept of geographical
may claim to represent the will of the people, and rule in its maps and consequently the imaginary lines of latitudes and
name, pretending to detain auctoritas. longitudes defined, caged and limited the new territories in a
definite form.
6. The Chunk Theory In its external aspect, sovereignty was exerted over these
The world is thus composed by a number of sovereign entities territories. Maps, in turn, were made possible because of the
that have absolute dominion within their territorial borders, all application of a précised subject called ‘geometry’. Bartelson
of these sovereign entities being in a relationship of parallel interprets that the notion of indivisibility of sovereignty must
equality with each other. In other words, they all possess an be equated with a decimal which is one of the main features of
identical set of sovereign features, and the sovereign powers mathematics.
belonging to each of such entities stop exactly where the In its internal aspect, sovereignty came to be identified first as
sovereign powers of another begin. This is the so-called chunk a symbol in the form of a crown and this symbolic
theory of sovereignty, according to which sovereignty may interpretation paved way for the political and legal
only be possessed “in full or not at all,” being represented as a understanding of sovereignty. The concept of sovereignty
monolithic chunk of identical stones, any one of which is allowed the king to be the sole proprietor of political power in
possessed by a sovereign entity [22]. a defined territory. As the concept of nation-state grew, the
From the standpoint of international law, the translation of this idea of sovereignty became entrenched in the legal order of the
theory into practical terms shows the connection between the nation-state. The concept of sovereignty now became
concept of sovereignty, at least in its strict and narrowest sense, unchallenged in its internal sphere.
with the notion of constitutional or legal independence.
9. Conclusion
7. The Basket Theory The various interpretations of the concept of ‘sovereignty’ by
The degree of independence exercised by States varies greatly different thinkers clearly tell that the concept of sovereignty
in reality. It is necessary to emphasize that even for the most was open to interpretation across time and space. From
powerful States in the world sovereignty is not absolute. For ‘traditional sovereignty’ to ‘popular sovereignty’ and now its
instance, a number of States have definitively delegated a wide symbolic manifestation, the meaning of sovereignty has
range of powers to other entities, as has happened with the undergone many changes. In early times, sovereignty was
European Union. Thus, the so-called basket theory of interpreted in strict sense, owing supremacy and indivisibility
sovereignty appears as much more coherent to the concrete to the authority of State. This later changed into ‘popular
reality existing in the real world than the chunk theory [23]. sovereignty’, where the sovereignty of a state was derived from
According to the basket theory, sovereignty is to be seen “in the will of its subjects, i.e., the individuals. And now, amidst
variable terms, as a basket of attributes and corresponding various international players and multipolarity, the concept of
rights and duties [24].” Any sovereign entity owns a basket, but sovereignty is again being reshaped. This is indicative of the
the content of the different baskets varies considerably; certain fact that sovereignty is essentially a fluid concept whose
sovereign entities have baskets with many more attributes of meanings and conceptions have been changing as per the
sovereignty than others, and as a result, entities possessing polity, times, among other factors.
more of these attributes have a higher degree of independence. This position is indicative of the fact that ‘sovereignty’ is
interpreted by way of ‘Teleological’ or the ‘Purposive’
8. Sovereignty as Symbolic Form approach of interpretation. According to McDougal, who has
Jens Bartelson, a Professor of Political Science, has, in his influenced the teleological approach, many concepts of the
book ‘Sovereignty as symbolic form’ given a short and international law are imprecise and travel in opposite direction
stimulating overview of the concept of sovereignty by (such as ‘intervention’ and ‘state sovereignty’ under the present
interpreting it in symbolic form. He has given a unique insight study). In such a decentralised system, the function of
into the origin of the concept of sovereignty. He makes a interpretation is not to dictate specific decision, as the case was
unique claim that sovereignty in its concept. in the interpretation of Treaty of Westphalia, but to draw
According to the author, sovereignty is to be interpreted in attention of the policy makers towards crystallised community
terms of ‘symbols’ and in the form of ‘geometrical expectations.
expressions’. Although we have grown accustomed to As argued by many thinkers that in the neo world order, the
regarding sovereignty as a defining characteristic of the concept of sovereignty has faded away or shrank, but to this, I
modern state and as a constitutive principle of the international would suggest that in reality the dimensions of sovereignty has
system, Sovereignty as Symbolic Form argues that recent changed. The watertight conceptualisation of ‘sovereign’ in
changes indicate that sovereignty has been turned into ‘absolutist’ terms is not justifiable to categorise national
something granted, contingent upon its responsible exercise in supremacies in an evolved global scenario.
accordance with the norms and values of an imagined
international community. Hence we need a new understanding 10. References
of sovereignty in order to clarify the logic of its current usage 1. Weber C, Thomas J. Biersteker, Reconstructing the
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International Journal of Law

Analysis of Sovereignty: Concluding Reflections and

Directions for Future Research, State sovereignly as social
construct, at 278, 1996.
2. Ibid.
3. See Keeton GW, Schwarzenberger G. Making
International Law Work, New York, 1972, 133-134.
4. Krasner S. Compromising Westphalia. International
Security. 1996; 20(3):472-96.
<http://www.jstor.org/stable/10.2307/2539141>, retrieved
on 20 January, 2016.
5. See Keeton, Schwarzenberger. ibid., Richard H. Cox (ed.),
The State in International Relations, San Francisco, 82,
135.
6. Niccolo Machiavelli, The prince & the discourses 354
(Christian E. Detmold trans., A.S. Bames &Co., Inc.1940).
1882
7. Ibid at 255.
8. See Bodin J. Six Books of the Commonwealth, M. J.
Tooley, trans., Oxford, 1955, 25-26.
9. See Bodin, ibid., also quoted in Richard H. Cox (ed.), The
State in International Relations, San Francisco, 45.
10. Quoted in BowIe J. Western Political Thought, London,
1947, 324.
11. See Keeton and Schwarzenberger, 7:137.
12. See Brierly JL. The Law of Nations, Sir Humphery
Waldock (ed.), Oxford, edn. 1963; 6:13-14.
13. See Sabine GH, Shephard WJ. Introduction to Krabbe's,
the Modern Idea of the State, New York, 1930, 30ff.
14. Glanville L. The Antecedents of ‘Sovereignty as
Responsibility, European Journal of International
Relations, 2011; 17(2):233-255.
15. Glanville L. The Antecedents of ‘Sovereignty as
Responsibility’, European Journal of International
Relations, 2011; 17(2):233-255.
16. Philpott D. On the cusp of sovereignty: Lessons from the
sixteenth century. In: Lugo LE (ed.) Sovereignty at the
Crossroads? Morality and International Politics in the
Post-Cold War Era. London: Rowman and Littlefield,
1996.
17. Supranote 6, at 24.
18. Ibid at 25.
19. Supranote 8, at 234.
20. Levy L. ed., Encyclopedia of the American Constitution
(Nathan Tarcov), “Popular Sovereignty (in Democratic
Political Theory), 1986; 3:1426, ISBN 9780028648804.
21. http:/ / etext. virginia. edu/ jefferson/ quotations/ jeff0300.
Html, retrieved on 10 March, 2016.
22. Fowler ML, Julie Marie Bunck. Law, Power, and The
Sovereign State: The Evolution And Application Of The
Concept Of Sovereignty 64, 1995 (Quoting Inis L. Claude,
Jr., National Minorities: An International Problem. 1955,
32.
23. Ibid, at 72-73.
24. Ibid, at 70.

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International Journal of Law

International Journal of Law

ISSN: 2455-2194, RJIF 5.12
www.lawresearchjournal.com
Volume 3; Issue 1; January 2017; Page No. 36-39

Status of women from ancient to modern days in India

R Jaya Bharathi
Assistant Professor in Law, Shri P. Basi Reddi College of Law, Kadapa, Andhra Pradesh, India

Abstract
Women deserves to be conferred supreme status for the reason, she is not only creature of the world but also instrumental for
growth and development of the family including the progress of her husband in particular. The role of a woman as a model and
ideal housewife contributes a lot for building a progressive nation tomorrow. It is to be noted that, only woman as a housewife
attends all her duties regularly and punctually throughout the year for 365 days without aspiring for a single day as a holiday. The
problem is, needs to be examined in the context of rights for establishment of a just and equitable social order, where nobody can
be treated or exploited by another as unequal. No law, custom, tradition, culture or religious consideration should be invoked to
excuse discrimination against women.

Keywords: women, no law, custom, tradition, culture or religious

Introduction suppress and downgrades its better half, making them no more
The status of women in almost all parts of the world is than a better half. Hinduism defines women to be a man’s half-
discriminatory and prejudicial because of male dominated batsman. It is a clearly and symbolized through “shiv- shakti”
society’s practical inequality between men and women that a man is incomplete without a women. Holly books have
everywhere. women in fact, not only in a primitive society, but preached equality of both sexes. But even today’s ultra-modern
also in this modern global world in certain places, irrespective India the situation remains the same as it was centuries ago.
of rural or urban, rich or poor has been treated as a tool in Women have unique position in a every society whether
kitchen room and toy in the hands of her husband and developed, developing or under developed. In spite of her
collaterals. Since the time immemorial, women as a whole in contribution in the life individuals human begin; she still
this universe were placed inferior to men as the women could belongs a class or group of society which is in disadvantaged
not act independently and had to rely on a man for doing position on account several social barriers and impediments.
anything. In other words she had to take the consent of her The face and style of women exploitation has changed from
father or husband for taking any decision [1]. It is an admitted visible to invisible. However, the cruelty and extent is
fact that ours is a civilized society, and in our society, human unchanged. The status of women ancient period was
relationships play a very important part. These relationships considered more powerful than man and treated as goddess of
necessarily involve mutual trust, regard for each other, because “Adi Shakti”. The birth of a girl child in the ancient society
without them, human relations cannot come into existence, nor was heralded as the arrival of Goddesses Lakshmi. Ancient
they can be perpetuated with benefit to both the parties. The texts of all religions prescribe what should be the qualities of
global problem of the present day is, gender injustice or gender women. Any women who do not possess those qualities are not
inequality. There has been discrimination between men and “good” and social sanctions may be invoked against her. Manu
women, male domination and suppression of women since pre- states that where woman are worshipped, God dwells there. In
historical times. Women, who constitute half of the world’s order to be worshipped, she must possess worship able
population, work 2/3rd of the world’s working hours earn just qualities but these qualities are understood and imposed from
1/10th of the world’s property and remain victims of inequality the point of view of the society and not the woman herself. The
and injustice. Consequent to these discriminatory practices, image building begins even before birth. She should be
social, economic and cultural resulting in cumulative virtuous as defined by the society; she should be tolerant,
inequalities in both the developed and developing countries, renunciate and sacrifice to the extent the society demands of
the ideas and goals enshrined in various social legislations and her. In other words, the woman’s individuality and personality
international conventions invoking/envisaging women’s cannot blossom on its own naturally; she is cast into a mould---
equality/welfare remain unrectified. As human development an image approved by the society [3]. This image forming
moves centre stage in the global development, debate, gender process has led to socio-economic deprivation and oppression.
equality is emerging as a major global challenge [2]. According to Rig Veda woman is the queen of house. Satpatha
Brahmana says that the wife is her co-equal with each other. It
Status of Women in Ancient Period was believe that is her husband’s ardhagini. This epoch still
Life begins from a ladies womb. The sole privilege and power retained a certain liberty of expression for women’s religious
to create – srijan -is what makes her lord of this world in the aspirations. Women where glorified as “the lamp of home” and
true sense. She is the force behind every man in one form or it is laid down that a home is void without a women to run it .It
the other –mother, wife, sister, and daughter and so on. But all is also said that a virtuous wife gives a good status to her
these sound mere rhetoric and speechifying when the majority house. The status of woman decreased during the medieval
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International Journal of Law

period. Women completely lost their glory. During this period public interest and care in order to preserve the strength and
there were main customs such as sati, ban on widow vigor of the race [9]. Discrimination against women continues to
remarriage, child marriage she had no choice selection of life exist even today as it is so deep-rooted in the traditions of
partner. In purely Indian context, Indian women have come a Indian society. The root cause for the discrimination of women
long way from the Vedic ages. There have been changes in is that most women are ignorant of their rights and the position
every aspect of her life, yet she has miles to go before she rests of equality assured to them under the Indian Constitution and
[4]
. With invasions of India by Alexander and the Huns, the legal system. Enlightened women should fight to bring
position of women was further degraded. Their education and awakening in other women regarding their rights by bringing
training came to a sudden halt. For reasons of security, awareness about their status in society as they constitute half of
movement outside was restricted which in turn denied the Indian population [10]. In tune with various provisions of the
opportunities in community affairs. With invading armies Constitution, the State has enacted many women-specific and
roaming the countryside, women were put behind the veil [5]. women-related legislations to protect women against social
discrimination, violence and atrocities and also to prevent
Struggle for Women’s Freedom in 18th & 19th Centuries social evils like child marriages, dowry, rape, practice of Sati,
The Indian setting in the late 18th and 19th century was etc.---the problem , however, is in non-implementation of such
incontrovertibly much more complex than this due to its laws and the lack of sensitivity of the society to deal with such
colonial antecedents. To begin with, it must be mentioned that issues. In particular, provisions in the criminal law, in favor of
even a partial authentic account of the initiatives and role of women, or in the procedural law discriminating in favor of
women activists or reformers on this issue is yet to be women, have been upheld [11].
documented as far as India is concerned. A fragmented version
attests that the social reformers of the 19 th century sought legal Crimes against Women
changes from British colonial administration with a view to A woman plays different of roles during her life time. At the
improving the status and conditions of women [6]. The woman work place she is labour, farm worker, employee, sometimes
question was definitely as part of a broader agenda of social employer, scientist, educator, academician and professional.
and political reform, need and expediency of the day. For the She is also activist, policy maker and law maker at the social
colonial regime it was part of a ‘civilizing mission’ to liberate and community front. Today’s women are playing multi-
Indian women from the indigenous ‘barbaric and degenerate’ tasking roles. A working women nevertheless has to be all-
tradition. In that Century, especially after the emergence of rounder she has to constantly keep in mind home, fulfill its
Raja Ram Mohan ray on the socio-political scenario with requirements first before she is leaves her house. In India
Swamy Dayananda Saraswathi, Justice Ranade, Sister nearly half of the population comprise of women. Yet, they are
Nibedita, Gopal Krishna Gokhale, Swamy Vivekananda, Annie dominated, suppressed, harassed, ill-treated, subjected to
Beasant, Pandita Rama Bai, Mahatma Gandhi, Kasturba, Mira mental and physical violence and sometimes even denied of
Ben with long struggles, attention of Government could be their basic human rights. They are the ones who are made to
drawn to the said plight and exploitations of women and new sacrifice and suffer without any right of complaining for it.
legislations were enacted to save women from the victimization Females are brought up in that manner. There are different
of crimes. The centuries have been passed but women’s kinds of violence or crimes committed by males in the male
conditions are not changed yet. Time is a witness of all this. dominated society. Violence against women is rampant in all
Helpless women are suffering in the form of discrimination, corners of the world. Such violence is a human rights violation
exploitations, degradation, aggression and humiliation. that manifests itself in a number of ways including violence
against women in custody, Acid attack, Bride burning,
International and Constitutional Protection for Women Physical, Emotional, Economic and Psychological abuse,
The intensification of women’s issues and rights movement all Domestic Violence, Female genital mutilation, Human
over the world is reflected in the form of various Conventions trafficking, Dowry death, Honour killing, Human rights
passed by the United Nations [7] viz. Convention on the violations based on actual or Perceived Sexual Identity, Sexual
Political Rights of Women, 1953., Convention on the Assault and harassment at work places, Rape, Kidnapping and
Nationally of Married Women, 1957., Declaration on Abduction, Molestation, Gender Based Asylum, Importation of
Elimination of Discrimination Against Women, 1967., girls, etc are rampant not only in India but at global level. A
Convention on the Elimination of All Forms of Discrimination central theme the women’s movement all over the world has
Against Women, 1979, Declaration on the Elimination of been violence against women both in their homes and outside.
Violence against Women, 1993, Vienna Conference, Beijing This is directly linked to their unequal position in a patriarchal
Conference etc. The Constitution insists on equality of status society cutting across both class and community. The first
and it negates gender bias [8]. The framers of the Indian categories of violence focussed on were rape and murder of
Constitution were well aware of the inequality between men young brides for dowry. Rape is a crime, not only against the
and women (gender discrimination) and incorporated certain person of a woman; it is a crime against the entire society [12].
specific provisions for uplift ment of the status of women i.e, Dowry in the sense of the bride’s price or the bridegroom’s
Article 14, 15(3), 16, 21, 21-A, 23, 24, 25, 39, 39-A, 42, 44, price, spread like a contagious disease and ultimately became
51-A (e), 243-D and 243-T. Though the Indian Constitution regular practice [13]. It was released that there were other more
provides equality of status and of opportunity to women, brutal expressions of the widespread phenomenon of domestic
discrimination is persisting in one form or the other. The violence which included wife beating, cruelty, torture and
reason is the women’s physical structure and the performance humiliation. This realisation made women’s groups demanded
of material functions place her at a disadvantage in the struggle that wife abuse be treated as an offence too. is then that the real
for subsistence and her physical well becomes an object of picture emerges and we realize that the whole bulk of this
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International Journal of Law

protective legislation is a very modest attempt to combat the prevalent in India. One of the reasons why a female child is
deep-rooted and all pervasive evil of horrendous crimes that unwelcome is, the parents dread the cost of marrying a
are committed against women every day. The list of crimes that daughter as notwithstanding enactment prohibiting the system
are committed against women seems amaranthine, varying of dowry in India, dowry is still prevalent in India either
from simple harassment, physical and mental torture to even directly or indirectly not only amongst the poor, but even
denying them the very right to exist. Scientific techniques are amongst the middle classes and rich families also [18]. The girl
misused to kill girls even before they are born or else crude child, a perpetual burden to the family, particularly in the rural
methods like feeding them the juice of berries are used to sniff areas, has to work from the morn to night on and do every duty
out life soon after they are born [14]. The places where these possible. The routine of work of a girl of poor rural families
crimes are committed and the persons by whom they are and of lower-middle class urban families is simply staggering.
committed are also endless. These are crimes that are Even a not too exhaustive list of their work is sure to take one
committed within the four walls of the house, those that are out of the one’s breath [19]. But, unfortunately, discrimination
committed at public places right in the glare of the public. In goes on unabated whether it is in the field of survival, health,
spite of the plethora of protective laws the index of these education, employment or in other broader perspectives of
crimes touching dizzying heights. The incidence of these social life. All these are culturally determined as culture
crimes is very high, it knows no barriers of caste, class, religion demands that a boy is more valued than a girl. This psychology
or socio-economic strata. Earlier, it was thought to be the is very much prevalent even in times of natural calamity and /
preserve of the uneducated people of lower castes but now-a or disaster. Even if the infant mortality rate in India today is
day’s women from all social strata and professions are victims not alarming, the survival of the girl-child still remains very
of these crimes. Professionals like doctors and judges, precarious. Owing to the deliberate neglect of the girl in
executives and lawyers etc. Most of the women are still treated respect of food, nutrition and education, her inability becomes
as second class citizens. The media exposure and the laws have very much constrained. Growing up in such an atmosphere of
very little impact; they are themselves contradictory and often discrimination the personality of a female child often is
betray the pro-male bias. Crimes against women are as old as affected and being subjected to further discrimination when she
civilization and equally ancient are the efforts to combat and goes out and faces the outside world. Her personality often
arrest them. These efforts have not succeeded and crimes are becomes totally impaired and she starts believing that being a
still maintaining their upward trend. These are records of female she is inferior to a male and accepts the act of
women being raped, abducted, beaten and subjected to discrimination as quite normal and obvious.
humiliating treatment. Women have been subjected to socio- But that is not only reason why a female right from her birth
economic and cultural deprivations for such a long time that and childhood has a suffer discrimination. The other most
there is a general indifference and lack of awareness for crimes important reason for which a female has to suffer such
against them. Women are reared in an atmosphere which discrimination not only in the Indian society but world over
slowly but positively helps in the development of a feeling of including in the so-called developed countries is a
inferiority, they become used to the institutional legitimating of preconceived notion that a female is inferior to a male both
their low status and find nothing wrong in some of the crimes physically and intellectually although there is no medical and
that are committed against them. Most of the protective laws scientific basis of such a notion [20]. At home a female child is
fail because of defective enforcement; proper implementation not treated equally to male child and is discriminated against in
of these laws will go a long way in curbing crimes against the matter of food, clothing, education and other matters. In
women [15]. this realm of the patriarchal domination, women are treated as
chattels and upon marriage dominion over them was
Patriarchal system impact on Women: transferred from the father to the husband within the confines
Indian society is male dominated. Man occupies a superior of perpetual tutelage [21].This discrimination very often arises
status and the women are merely his appendage. A women is from the traditional mind-set that the real life for a female
never an entity in her own right, she is “first the daughter, next starts after her marriage and it is the duty of the parents to rear
the wife, and last the mother of a man”. Men are consciously up the daughter till she is given in marriage. Because of such
taught to be aggressive and tough while women are deep-rooted pre-conceived notion a female not only suffer
conditioned to be submissive and docile [16]. In India sub- discrimination at her parental home, but also suffers the same
continent there have been infinite variations on the status of outside the home when she goes out and faces the outside
women diverging to cultural malice’s, family structure, class, world in various spheres of life, including the educational
caste property rights and morals. Patriarchy is a popular system institution. Later on even in the work place, she suffers such
all over the world. In literal sense it is the dominance of the discrimination. She is not only subjected to sexual abuse but
father, which in turn means domination of the male gender. she may also be subjected to ridicule, apathy, and sensitivity.
Such domination was not on women. It included the vulnerable The unkindest cut, because of such discrimination by the
comprising of children, slaves, etc. Therefore the patriarch society, a woman suffers, if she is a victim of sexual
could dominate over other men as well if they were in a lesser harassment and rape. She, although is the victim and not the
status and a vulnerable situation [17]. At the core of patriarchy accused, she suffers further humiliation from the society and in
lies a relative power equation. Patriarchy, therefore, is not class fact she is ostracized by the society. Women’s health is
or caste specific. In the male dominated society, a female, right affected by many factors, including biological differences and
from her birth is treated unequally. Amongst the large sections social conditions, discrimination and lack of access to and
of the Indian population and especially weaker sections of the inadequate health care and other services. Lack of food,
society, a female child is unwelcome and is treated as a deficient housing and inadequate access to safe drinking water
liability. Killing of female child and even female foetus is still pose a threat to rural and other women’s health. Morbidity and
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International Journal of Law

mortality rates of women, due to inadequate to reproduction distant dream. Laws are not enough to combat the growing
health, are still high. menace of gender injustice. A wider social movement of
educating women of their rights is what is needed. Human
Conclusion rights for all must be made the focal point in good governance.
Since women comprise the majority of the population below To ensure progress of the nation and usher in a just and caring
the poverty line and are very often in situations of extreme society. There can be no doubts about the inevitability of the
poverty, given the harsh realities of intra-household and social human rights regime as the foundation of a good value based
discrimination, macro-economic policies and poverty society---For human rights take a backward step, if gender
eradication programmes will specially address the needs and justice is not achieved. Women’s equality in power sharing and
problems of such women. There will be improved active participation in decision making, including decision
implementation of programmes which are already women making in political process at all level will be ensured for the
oriented with special targets for women. There is a need for achievement of the goals of empowerment. The society must
targeted efforts to ensure that rights of women in difficult respond and change its attitude. Gender equality concerns each
circumstances who include destitute women, women in conflict and every member of the society and forms the very basis of a
situations, women affected by natural calamities, women in just society. Human rights issues, which affect women in
less developed regions, the disabled, widows, elderly women, particular, play a vital role in maintaining the peace and
single women in difficult circumstances, migrants, women prosperity of a just society.
heading households, those displaced from employment, women
who are victims of marital violence, deserted women and References
prostitutes, etc. For the emancipation for women in every field, 1. Dr. Rega Surya Rao. Lectures on Women & Law, Asia
economic independence is a paramount importance. Along Law House, Hyderabad, 2013, p.9.
with economic independence, equal emphasis must also to be 2. ibid. p. 44.
laid on the total development women---creating awareness 3. Chakraborty G. Gender Justice, R. Cambray & Co. Pvt.
among them about their rights and responsibilities---the Ltd, Kolkata, 2006, p.21.
recognition of their vital role and work they do at home. It is 4. ibid. p. 19.
unfortunate but true that discrimination against the female 5. Mamta Rao. Law relating to Women & Children, Eastern
starts when she is still in the womb, through female foeticide. Book Company, Luck now. p.21.
Apart from foeticide, there are many other issues and one of 6. Dr. Bhadra B. Gender Justice, R. Cambray & Co. Pvt. Ltd,
them which is a cause for anxiety, is trafficking in women and Kolkata, 2006, p.47.
girls. It is a gross violation of their human rights. Women are 7. ibid. p .49.
being treated as chattels and commodities. Crimes in the form 8. Prof. MP Jain. Indian Constitutional Law, Lexis Nexis
of trafficking of the girl child, prostitution, domestic violence Butter Worth’s, Nagpur, 2008, p. 907.
and incest are on the increase. Take integrated measures to 9. Dr. JN Panday. The Constitutional Law of India, Central
prevent and eliminate violence against women. Provide women Law Agency, Allahabad, 2011, p.133.
with access to saving and credit mechanisms and, institutions. 10. Dr. Myneni SR. Women & Law, Asia Law House,
Study the causes and consequences of violence against women Hyderabad, 2003, p.15.
the effectiveness of preventive measures, Legal literacy of 11. Bakshi PM. The Constitution of India, Universal Law
women by creating awareness of rights among women through Publishing co. Ltd, Delhi, 2010, p.28.
media, published literature and voluntary agencies. In tune with 12. Vandana. Sexual Violence against Women, Lexis Nexis
various provisions of the Constitution, the State has enacted Butter Worth’s, Nagpur, 2009, p.67.
much women-specific and women-related legislation to protect 13. Achar MR, Venkanna T. Dowry and the Law, Lexis Nexis
women against social discrimination, violence and atrocities Butter Worth’s, New Delhi, 2002, p.7.
and also to prevent social evil like child marriages, dowry, 14. Shobha Saxena. Crimes against Women and Protective
rape, practice of Sati, etc. Let us resolve to empower women, Laws, Deep & Deep Publications, New Delhi, 1995, p.9.
for in that alone lies the progress of the society. 15. ibid.p.383.
A girl child is not a burden but an essential constituent of the 16. Shobha Saxena. Crimes against Women and Protective
society. The key to her empowerment lies not in her being Laws, Deep & Deep Publications, New Delhi, 1995, p.23.
killed in the womb but in her receiving education and 17. Chakraborty G. Emerging Necessities of Gender Balance
becoming economically independent. Most of the women in in Law, R. Cambray & Co. Pvt.Ltd, Kolkata, 2006, p.34.
our country are illiterate, and in comparison to males, are 18. Justice S Banerjea. Gender Justice, R. Cambray & Co. Pvt.
ignorant of basic law. Most of the times, they do not register a Ltd, Kolkata, 2006, p.8.
case against those persons who violate their persons or 19. Dr. B Dutta Gupta. Gender Justice, R. Cambray & Co. Pvt.
commits crimes against them. Lack of awareness, political Ltd, Kolkata, 2006, p.4.
participation, poverty, traditional oppression and customs, 20. ibid.p.9.
place an Indian women at a receiving end. Though violence 21. Flavia Agnes. Law and Gender Inequality, Oxford
stalks women’s lives everywhere, law can do little unless University Press, New Delhi, 2009, p.11.
present cultural and social perceptions change. This calls for a
resolve from all of us. Awakening of the collective
consciousness is the need of the day. Change of heart and
attitude is what is needed. If women were to receive education
and become economically independent, the possibility of many
pernicious social evils dying a natural death may not remain a
39
International Journal of Law

International Journal of Law

ISSN: 2455-2194, RJIF 5.12
www.lawresearchjournal.com
Volume 3; Issue 1; January 2017; Page No. 40-44

Durable solutions for protection of refugees and their correlation with social and economic rights
Ruchi Lal
Assistant Professor, IMS Law College, Noida, Utter Pradesh, India

Abstract
This paper scrutinizes the importance of three durable solutions i.e. local integration, voluntary repatriation and resettlement in
addressing the protection need of refugees. A durable solution is in stark contrast with emergency relief which is meant only to
satisfy the immediate physical wants of refugees for a short duration. The ultimate goal of any durable solution is to successfully
re-integrate the refugees within the society. In this regard, the paper attempts to establish the correlation between the durable
solutions and social and economic rights, and comes to the conclusion that the protection of the social and economic rights of
refugees lie at the core of the each durable solution i.e. local integration in the country of asylum; resettlement in a third country; or
voluntary repatriation to the country of origin, and indeed the respect for these entitlements will ensure better implementation of
these durable solutions.

Keywords: refugees, durable solution and social and economic rights

Introduction Voluntariness
The protection of refugees must include the search for an For repatriation to be a lasting and sustainable solution, it is
appropriate durable solution to their plight. A durable solution imperative that refugees must choose to return to their country
is attained when refugees no longer have any physical, legal, of origin on their own accord without any physical,
social and economic protection needs that are related to their psychological, or material pressure [7]. This implies that
displacement and can resume their normal lives in a safe and refugees cannot be forced to return to their country of origin
healthy environment [1]. In this context it becomes imperative against their will that in their personal evaluation has not
to define the term ‘durable solution’. Goodwin-Gill has defined transformed and hence, still is similar to the circumstances that
durable solution as ‘a process of integration into a society forced them to flee [8].
which will successful and lasting only if it allows the refugee Despite the fact that the question of voluntary repatriation has
to attain a degree of self-sufficiency, to participate in the social not been directly dealt with in the 1951 Refugee Convention, it
and economic life of the community and to retain personal can be implied forthwith from the principle of non-
identity and integrity [2].’ This definition emphasises upon refoulement, meaning thereby that the returning refugees
integration as the foundation of any durable solution and is against their will would amount to refoulement. An individual
more in line with the contemporary human rights approach, having a genuine fear of being persecuted in the country of
rather than the traditional wisdom which recognised durable origin is termed as a refugee and according to the concept of
solution as a means to put an end to refugee flows [3]. non- refoulement such a person cannot be forced to repatriate
[9]
Today there are three recognised durable solutions: .
 Voluntary Repatriation
 Local Integration Legal Basis for Voluntary Repatriation
 Resettlement in a third country Article 13(2) of the UDHR provides that, ‘everyone has a right
to leave any country including his own and to return to his
A) Voluntary Repatriation country.’ This Article applies to every person including
Voluntary Repatriation is considered to be the most beneficial refugees. In normal circumstances this implies that an
and desirable solution for the refugee crisis post-cold war era individual is at liberty to leave or, for that matter, return to his
[4]
. When the conditions in the country of origin are such that it country of origin without any hindrances by the State. The
permits return in safety and with dignity, return to home right to return has been recognised and protected in other
country is adjudged as the best solution as it enables refugees international human rights instruments as well. The 1951
to resume their lives in a familiar setting under the protection Refugee Convention and the 1967 Protocol do not make any
and care of his country of origin. So voluntary return to one’s specific reference to voluntary repatriation. However, the
own country may result in restoration of original conditions of cessation clauses of the 1951 Convention indirectly address the
living, restoration of citizenship and it also puts an end to pain issue in the following manner [10]:
and sufferings in exile [5]. It is regarded as a most desirable a) Article 1C (4) of the 1951 Convention specifies that refugee
solution also for the reason that because of mass influx of status will cease to operate if a refugee on his own accord
refugees as is witnessed in countries like India, the other re-establishes himself in the country or origin;
solutions of resettlement in third countries and the local b) With respect to the ‘ceased circumstances’, the cessation
integration in host countries do not seem to be a practical clauses in Articles 1C (5) and 1C (6) provides that the
solution [6]. effective conclusion of a voluntary repatriation programme
40
International Journal of Law

can signify that the conditions that prompted the flight of The third important aspect is to monitor the guarantees given to
refugees have come to an end. returnees by the country of origin. In this regard, UNHCR
Repatriation may itself cause serious problems. Therefore, the plays an important role, apart from mobilizing funds from
General Assembly has extended the mandate of UNHCR and donors to provide reintegration assistance both to the returned
increasingly authorised UNHCR involvement in the refugees as well as to the country of origin.
rehabilitation and reintegration programmes [11]. Earlier, the
viewpoint was that the role of UNHCR was till the time B) Local Integration
refugees reaches the country of origin but in the extended role, Barbara Harrell-Bond has defined local integration as creating
the UNHCR has the responsibility to monitor the safety and circumstances in which both the local population of the country
security of returned refugees and also to provide reintegration of asylum and the refugees can co-exist participating in the
assistance to refugees [12]. social and economic life of country with no bigger friction than
that which already subsists within the host community [17].
Existing UNHCR Mandate for Voluntary Repatriation As a durable solution, local integration has three inter related
The existing mandate of the UNHCR for voluntary repatriation aspects [18]:
relates to the following: a) It’s a legal process where asylum country confer upon
a) To ensure that the repatriation of refugees is voluntary in refugees increasingly vast range of rights like right to work,
nature. to take up other income generating activities, right to
b) Encourage and assist in establishment of climate of national property, freedom of movement, right to education etc.
protection that are favourable to wilful return of refugees in Here, in due course, there is also a possibility of conferring
safety and dignity. upon refugees the permanent residence rights and
c) Assist in the spontaneous voluntary repatriation [13] even citizenship of the asylum country.
when the circumstances are not appropriate for return. b) It’s an economic process whereby refugees become
d) To make suitable arrangements in cooperation with local financially independent and therefore, they increasingly
NGOs and other humanitarian agencies for transportation become less dependent upon the aid and other humanitarian
and reception of returning refugees. assistance by the asylum country and by other international
e) Monitor the status of returned refugees in the country of organisations.
origin and supervene if it deems essential. c) It is a social and cultural process through which the
f) To support and enhance national legal and judicial refugees become integrated within the local population
capacity-building in order to better assist the states to deal participating in the social and cultural life of the host
with the reasons of refugee movements. country free from any fear of discrimination or exploitation.
g) To generate funds from the donor community for providing
active assistance to the local government in dealing with Legal basis for Local Integration
effective repatriation of returnees. The concept of local integration as a durable solution has been
h) To operate as a channel for medium and long term recognised in Article 34 of the 1951 Refugee Convention
rehabilitation support provided by NGOs, and other which imposes an obligation upon the contracting states to, as
humanitarian agencies. far as possible, to facilitate the assimilation and naturalisation
In the year 2014, 126,800 refugees voluntarily went back to of refugees and to make every effort to expedite such
their country of origin, majority of them with the assistance of proceedings. In 2005, the Executive Committee of the UNHCR
UNHCR. However, this figure was significantly lower than in its conclusion No. 104 (LVI) emphasized the significance of
2013 when 414,600 refugees were reported to be voluntarily local integration as a burden sharing activity and endorsed the
repatriated. The reason for this declining trend, according to role of UNHCR in providing assistance and support to the
UNHCR is wars, ethnic persecution and political instability countries allowing refugees within their territories …and also
prevailing around the world in last few years [14]. The countries in generating funds and other developmental support from the
that reported the largest numbers of repatriations included the international community [19]. This conclusion also highlighted
Democratic Republic of the Congo (25,200), Mali (21,000), the need for the refugees to become self-reliant so facilitate
Afghanistan (17,800), Angola (14,300), Sudan (13,100), Côte local integration [20]. The 2005 UNHCR’s Executive
d’Ivoire (12, 400), Iraq (10,900), and Rwanda (5,800). Committee Conclusion on Local Integration also highlighted
Together these eight countries constituted 95 per cent of total the importance of legal, economic and social aspects of local
voluntary repatriation during the 2014 [15]. integration which are together essential for enabling refugees to
Voluntary repatriation will continue to be a preferred durable successfully integrate into the host community [21].
solution but its success is mostly dependent upon the Very few countries today publish data on naturalized refugees.
willingness of the country of origin that refugees should return In the year 2014, only 27 countries reported naturalisation of
and also on the free and informed decision of the refugees refugees due to which it becomes difficult to determine the
themselves. However, there are some important aspects, which extent of local integration. In the year 2014, 27 countries
are to be taken care of before repatriation of refugees. Firstly reported the according of citizenship to 32,100 refugees,
the return has to be in safety and with dignity [16]. Return in particularly in Canada (27,200), France (2,400), Tanzania
safety not only means physical security but also freedom from (1,500), and Ireland (560) [22].
any kind or persecution or punishment. Return with dignity, on
the other hand, signifies acceptance of the refugees by the C) Resettlement
national authorities and local community so that rights of the Resettlement is a process of screening and transportation of
returnees are fully restored and protected. Secondly, it is refugees from the country of first asylum to a third country
important to ensure that repatriation is voluntary in character. which has consented to provide them with permanent residency
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International Journal of Law

status. The resettlement country should provide to such opportunities, and more efficient use of resettlement both as a
refugees protection against refoulement and also confer upon protection tool and as a durable solution [30]. Goal 3 of the
them similar rights as is enjoyed by the citizens of the country Agenda summons the States and UNHCR to utilize
[23]
. resettlement as a means of responsibility and burden-sharing.
According to Ropert Colville, ‘resettlement is geared to the The obligations of States to comply with the objectives and to
special needs of an individual whose life, liberty, health or cooperate with UNHCR in attaining the goals continue to keep
fundamental human rights are in jeopardy in the country where the Agenda for Protection alive as an essential soliciting and
he or she first sought asylum. It is a highly complex, organised advocacy instrument.
process that involves identifying those in urgent need and Convention Plus was an initiative of the UNHCR intended to
finding a suitable country for them [24].’ improve and facilitate the international protection and effective
Refugees often have to suffer gross violation of human rights resolution of refugee problems by way of multilateral special
not only in the country of origin but also in the country where agreements. One of the primary subjects for such agreements is
they seek asylum. Their life, liberty, freedom may be the use of resettlement as a means of protection, a durable
threatened in the country of refuge often making their stay solution and a fundamental form of burden-sharing [31].
unsustainable [25]. Furthermore, the government of the host Developing on the experiences of the Working Group on
country maybe incapable or unwilling to provide effective Resettlement as well as the prior endeavours of resettlement
protection to refugees and to tackle their special protection partners, the Multilateral Framework of Understandings on
problems. In such a situation, judicious resettlement of Resettlement [32] was evolved to provide direction to the tackle
refugees to a third country becomes an appropriate solution to to specific situations and to facilitate the strategic use of
address their protection needs. resettlement [33].
In the year 2014, UNHCR, reported that there were only 27
Resettlement within UNHCR’s mandate countries in the world providing for opportunities of
UNHCR has recognized resettlement as a sensible means to resettlement to refugees [34]. There were a total of 103,800
provide permanent solution to the problems of refugees whose refugees in 2014 whose file UNHCR presented for
life, liberty, safety, health or human rights are in danger in the consideration to different countries. Those to benefit from the
country of first asylum [26]. resettlement efforts of UNHCR were mainly from Syria,
Under the patronage of UNHCR resettlement has three core Democratic Republic of the Congo, Myanmar, Iraq, and
functions [27]. Somalia [35]. Under its resettlement programme, the United
a) It is a mechanism to provide protection and to safeguard States of America continued to admit the largest number of
those refugees whose life, liberty, safety, health or other refugees worldwide with 73,000 resettlement reported during
fundamental rights are at danger in the country of asylum. 2014 which was factually more than two-thirds (70%) of total
b) Secondly, along with voluntary repatriation and local resettlement around the world.
integration, it is durable solution for refugees to address
their varied protection needs, to reinstate their safety and Correlation with Social and Economic Rights
dignity, and also to provide them a secured future. For refugees, whatever is their background and wherever they
c) Thirdly, it is a mechanism for international burden- seek refuge, all too often they share a common predicament:
responsibility sharing, whereby States support each other in their human rights are in jeopardy, and they face practical
keeping with the spirit of international solidarity ensuring problems in accessing the social and economic entitlements [36].
that the impact of refugee influxes is not solely borne by The denial or lack of access to these rights can impede the
country of first asylum. process of finding an effective durable solution. In fact, the
success and sustainability of each durable solution requires that
Agenda for Protection and Convention Plus refugees are able to enjoy social and economic rights.
Fresh impetus and wider perspective was provided to Voluntary repatriation is a preferred long-term solution for the
resettlement with the adoption of the Agenda for Protection in majority of refugees in the world. However, in order to be a
2002 and the Convention Plus initiative in 2004. viable solution it is imperative that the return of refugees to the
The Agenda for Protection emphasised upon the extension of country of origin should be safe, and social and economic
resettlement prospects by [28]: conditions should be conducive for their reintegration.
a) Increasing the number of countries offering resettlement; In any refugee repatriation, assistance plays a very important
b) Developing resettlement as a tool for assisting as many role. The social and economic rights in terms means of right to
refugees as possible; work, housing, food, drinking water, health services, education
c) Enhancing capacity building initiatives with new have to be guaranteed. In this regard the UNHCR primarily
resettlement countries; promotes an integrated voluntary repatriation process
d) persuading the countries to enhance their resettlement comprising of ‘four Rs’- repatriation, reintegration,
quotas; rehabilitation, and reconstruction [37]. This approach requires
e) To enlarge the absorption of the varied refugee coordinated efforts of both national government and
communities; and humanitarian agencies, and also requires funds from donors.
f) To put in place more flexile resettlement criteria. The overall aim of this coordinated approach is to develop a
The Agenda for Protection provides a valuable outline to favourable social and economic environment to facilitate the
collaborate the efforts of Nation States, NGOs, UNHCR and sustainable voluntary repatriation [38]. In fact, voluntary
other humanitarian agencies on the issue of resolving refugee repatriation to the country of origin will not be successful and
crisis [29] Of specific relevance to resettlement is Goal 5 of the will lead to renewed displacement of returnees if they are not
Agenda, which calls for the expansion of resettlement able to rebuild their lives in a tenable manner, which means
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International Journal of Law

they must be able to realize social and economic rights. 11. UNHCR, Handbook: Voluntary Repatriation: International
Where voluntary repatriation is not a viable option, conditions Protection, Supra note 7.
should be created in the asylum country for the integration of 12. Ibid.
the refugees into the local community and facilitate their 13. There are two methods of voluntary repatriation namely:
involvement in the social and economic verve of the country organised repatriation and spontaneous repatriation. In
[39]
. One of the critical ways of achieving this objective is by case of the former, UNHCR is actively involved in
making accessible social and economic rights to refugees in the adjudging the conditions of safety for return, providing
country of asylum. logistical support and other required assistance. However,
Successful local integration necessitates that refugees are in case of spontaneous repatriation, refugees repatriate on
granted a progressively wider range of social and economic their own, often without any assistance from any agency.
entitlements by the country of refuge that are broadly 14. UNHCR, World at War, Global Trends, Forced
commensurate with those enjoyed by its citizens. These include Displacement in 2014, available at: http://unhcr.org/
access to adequate food and clean water, right to work and 556725e69.html#_ga=1.52813024.959335039.144620246
education, access to public relief and assistance, including 2 (Visited on December 14, 2015).
health facilities etc. Realization of family unity is another 15. UNHCR, Handbook: Voluntary Repatriation: International
important social aspect of local integration. Protection, Supra note 7.
Denial of social and economic rights can result in a refugee 16. Ibid.
population failing to integrate for generations [40]. Refugees, 17. BE Harrell-Bond. Imposing Aid: Emergency Assistance to
who are not able to enjoy such fundamental rights, may have Refugees 7 (Oxford University Press, Oxford, 1986).
no choice but to move onwards of their own accord to another 18. Sarah Dryden-Peterson, Local integration as a durable
country where they believe they can realize their social and solution: refugees, host populations and education in
economic rights. Uganda, available at: http://www.unhcr.org/3f8189ec4.pdf
Thus, refugees who are denied social and economic rights, (Visited on December 3, 2012).
specifically employment and education, in a country of asylum 19. EXCOM Conclusions: Conclusion on Local Integration,
will often look for resettlement to another country where they No. 104 (LVI) – 2005, available at: http://www.unhcr.org/
can realize these rights. Again for resettlement to be effectively 4357a91b2.html (Visited on December 3, 2012).
implemented, it is essential that resettlement states guarantees a 20. Ibid.
better standard of living to refugees, their families and 21. Ibid.
dependants by ensuring access to social and economic 22. UNHCR, World at War, Global Trends, Forced
entitlements similar to those enjoyed by nationals. Displacement in 2014, supra note 14.
Hence, from above it is clear that the protection of the social 23. UNHCR Resettlement Handbook, 2011, available at:
and economic rights of refugees lie at the core of the each http://www.unhcr.org/3d46500b4.html (Visited on July 23,
durable solution i.e. local integration in the country of asylum; 2012).
resettlement in a third country; or voluntary repatriation to the 24. Ropert Colville. Resettlement: Still vital After All These
country of origin, and indeed the respect for these entitlements Years, 94 Refugees 5(1993).
will ensure better implementation of these durable solutions. 25. Resettlement: A Vital Instrument of International
Protection and an Element of Comprehensive Solutions,
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(Sage Publications, New Delhi, 2000). 31. UNHCR, Multilateral Framework of Understandings on
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Perspectives 189 (Dattsons Publications, Nagpur, 2007). FORUM/2004/6, http://www.unhcr.org/refworld/docid/
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Protection, 1996, available at: www.unhcr.org/ 33. UNHCR Resettlement Handbook, 2011, Supra note 23.
4164f6404.pd (Visited on November 30, 2012). 34. Ibid.
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9. Ibid. 37. Davis S Weissbrodt. The Human Rights of Non-citizens
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Bangladesh. Journal of Indian Research. 2013; 1(4):28. for Durable Solution for Refugees and Persons of Concern,
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International Journal of Law

2003, 5.Available at: http://www.unhcr.org/3f1408764.pdf

(Visited on December 2, 2012).
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Refugees. International Migration Review. 1986;
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40. Amnesty International, Lebanon: Economic And Social
Rights Of Palestinian Refugees: Submission To The
Committee On The Elimination Of Racial Discrimination,
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