Articles
Public Prosecutors, Victims and the Expectation Gap: An Analysis of Indian Jurisdiction
-Anupama Sharma
Public prosecutors hold a crucial position in the criminal justice system. They act neutrally to assist the court and produce the true picture of crime. Since victims are given a backseat by reducing their status from a ‘party’ to a ‘prime witness’, they rely heavily on the performance of the public prosecutor to win them justice. The paper analyses the standard of public prosecution office in India on the basis of three theoretical models provided by J. Fionda, i.e. operational efficiency, restorative and credibility models. Through this analysis, the paper highlights the deficiencies in the existing public prosecutor office and the resulting expectation gap, followed by suggestions to improve the deficiencies.
Battered Women: The Gendered Notion of Defences Available
Battered Women Syndrome is a psychological theory propounded by Dr. Lenore Walker that explains why battered women who are compelled to kill their partners continued to stay in the relationship in the first place. While focusing on the evolution of the Battered Women Syndrome in other countries, especially United Kingdom; this paper studies the interpretation of the corresponding ‘Nallathangal Syndrome’ as applied in the Indian context.
However, the legal recognition of the Battered Women Syndrome is at its nascent stage in India. While a lot is written in India about the shortcomings of the Protection of Women from Domestic Violence Act, 2005 there is little or no focus on battered women who retaliate. Even the official statistics relating to crimes in India do not account for it. The only available legal framework for them is the gendered Indian Penal Code and the defences available therein.
This paper explores the defences available to battered women compelled to cause the death of their partners in self-preservation. It will study the essentials of self-defence, provocation and diminished responsibility/insanity to explain how battered women are excluded from the criminal justice system. It will also study the application of the Battered Women Syndrome theory within the existing essentials of the abovementioned defences. It will conclude with suitable policies to keep in mind while dealing with battered women to bridge the gap between the criminal justice system and battered women.
Empirical studies on death row populations, often exploring effects of socio-economic or racial marginalization, are not uncommon across several legal systems that used to, or continue to retain the death penalty on their statute books. Studies indicating over-representation of certain communities in prisons in India have also appeared with more or less regularity over the years, mostly depending on the data released periodically by the National Crime Records Bureau, through its annual “Prison Statistics India” report. A comprehensive survey of the men and women on death row in India, however, had not been carried out till the publication of the Death Penalty India Report by NLU Delhi in 2016. This, being the first of its kind study carried out in the Indian context is a welcome development in the country’s legal scholarship.
This paper examines the evolution of the anti-terror legislation in India from Terrorist and Disruptive Activities (Prevention) Act 1987 (TADA), through Prevention of Terrorism Act 2000 (POTA) to Unlawful Activities (Prevention) Act (UAPA). This paper attends specifically to the jurisprudential tension between the promise of constitutional safeguards on the one hand, and the legal erosion of these rights inhering in these laws on the other.
The paper seeks to understand how this tension is resolved, philosophically and jurisprudentially in addressing challenges to these laws in the Supreme Court. How, first, did the Supreme Court respond to the allegation that these laws suffered from the “the vice of unconstitutionality”. Second, having upheld the constitutional wholesomeness of these laws, how did different courts respond in actual cases being tried under these laws – which legally subverted established evidentiary rules?
It is argued that the tension remains unresolved – despite professions to the contrary – and can be seen operating in the juridical field.
-Manisha Sethi
While rape is a predominantly female social experience, the offence of rape continues to be viewed and defined in law from the male social perspective. Since penetration is central to the male idea of sex, it is also the focus of the offence of rape, regardless of its disconnect with female sexuality, desire, or violation. The Criminal Law (Amendment) Act, 2013, though progressive in many ways, is also steadfast in its adherence to the penetration paradigm. In this paper, I argue that rape should be viewed as a violation of sexual autonomy and bodily integrity, rather than an act of penetration, and the legal definition of the offence ought to be expanded accordingly. This would facilitate a more wholesome, gender-just approach to the crime.