Advani’s Resignation Not Good for NDA’s Health: JD(U)


JD(U) today gave first indications of parting ways with the NDA, saying it is “difficult” to remain in the alliance which is on “ventilator support” in the wake of resignation of L K Advani from top BJP posts and anointment of Narendra Modi as party’s campaign committee chief for next Lok Sabha polls.

FULL STORY http://news.outlookindia.com/items.aspx?artid=800341

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HINDU LAW: Property of Female Hindu:


Section 14 of the Hindu Succession Act, 1956, provides for conversion of life interest into absolute title on commencement of the Act. However, sub-section (2) carves out an exception to the same as it provides that such right would not be conferred where a property is acquired by a Hindu female by way of gift or under a Will or any other instrument prescribing a restricted estate in that property. Thus, if a Hindu female has been given only a ‘life interest’ through Will or gift or any other document referred to in Section 14 of the Act, 1956, the said right would not stand crystallized into the absolute ownership. Section 14(2) carves out an exception to rule provided in sub-section (1) thereof, which clearly provides that if a property has been acquired by a Hindu female by a Will or gift, giving her only a ‘life interest’, it would remain the same even after commencement of the Act, 1956, and such a Hindu female cannot acquire absolute title.

Shivdev Kaur (D) by LRs v. R.S. Grewal , C.A. Nos. 5063-5065 of 2005; Decided on 20-3-2013 (SC)

CHIT FUND CRIME


Court freezes chitfund stash worth Rs 1.6 crore

NEW DELHI: As lakhs of depositors suffer from the menace of ponzi schemes, a special PMLA court here has ordered freezing of Rs 1.63 crore in bank accounts of owners of chitfund companies running inHaryana and Punjab which have allegedly cheated people.

Do Political Parties come within the ambit of RTI?


The Communist Party of India (Marxist) cannot accept the order of the Central Information Commission that political parties are to be treated as “public authorities” and brought under the purview of the Right to Information Act. This decision is based on a fundamental misconception about the role of political parties in a parliamentary democracy.

The CIC order states that “six national parties are substantially financed by the Central Government and therefore they are held to be public authorities under the Act”. This is untrue because the bulk of the funding and finances for the parties do not come from the government or any State institution. In fact, the CPI(M) does not even accept funds from the corporates which is legally permissible.

One of the concerns of the CIC seems to be transparency of the funding and finances of political parties. At present according to the law all political parties are required to submit their accounts to the Income Tax department and the Election Commission. Already under the RTI, the statement of accounts and the finances of the parties are accessible to anyone from the Election Commission. Any more details of the financing of the Party can be sought for and has to be given. The CPI(M) has from the outset taken the stand that the financial statements and accounts of a party should be publicly available.

But this does not mean that a political party has to be treated as a public authority. This will interfere with and hamper the functioning of a political party. A political party is a voluntary association of citizens who believe in the ideology, programme and leadership of the party. That party is accountable to its membership. To apply the Right to Information Act and demand access to the internal deliberations of the party whether it be on policy matters, organisational decisions or selection of candidates will constitute a serious infringement of the inner-party functioning, confidentiality of discussions and undermine the political party system itself. Opponents of a political party can utilise the RTI as an instrument to destabilise a party.

Given the serious implications of this order of the CIC for the political party system and parliamentary democracy, the matter should be discussed by the Government with all political parties so that suitable steps can be taken to preserve the integrity and the role of political parties in a democratic political system.

What is General Power of Attorney? How to revoke it??


Power of Attorney is a document of agency whereby the principal appoints an agent to do and execute certain acts or deeds on his behalf. Various can be found in different enactments like according to the Bombay Stamp Act it is defined as “any instrument empowering a person to act for and in the name of the person executing it and includes an instrument by which a person a not being a legal practitioner is authorized to appear on behalf of any party in proceedings before any court tribunal or authority”

 

Therefore in the following pages various cases decided by the Hon’ble Supreme Court and High Courts of various states have been analyzed to determine what is the test laid down to decide whether a power of attorney can be revoked or not. After this case analysis only we would be a position to arrive at an answer to this issue regarding revocation of power of attorney.

Loon Karan
v.
Iva John

Material Facts- The appellants was indebted to the bank . he executed a power of attorney in favor of the bank authorizing the bank to execute a decree obtained by the debtor against a third person and credit the realizations to the debtors account. The power of attorney inter alia recited as follows ” I am heavily indebted to the bank of Jaipur Ltd. and my liability is partly secured by the pledge of my goods and where a major part of my liability is unsecured and I have agreed to appoint Jaipur Bank to be my true and lawful attorney to execute the deed which may be passed in my favor and do things on my behalf and credit to my account the sum which may be realized in execution of the said decree. I irrevocably nominate and constitute bank of Jaipur to represent me, to proceed in execution of the decree of the Agra Suit and to realize and recover the decreetal amount.. To withdraw any amount deposited in court with regard to the said decree”.

The decree was passed in favor of the appellants . Thereafter the bank levied execution of the decree The execution application was signed by the bank manger though it was in the name of the appellant as his attorney6 holder. The appellants objected to it saying that the power of attorney relied by the defendants have been obtained by false representation and assurances. The assurances were alleged to be promises by the bank to lend the appellants certain sum of money which the did not eventually lend. Therefore no sum is payable to the bank The objection was overruled by the trial court.

Issue Involved- The only question in appeal was whether the power of attorney executed in favor of the bank was a power coupled with interest and therefore irrovacble u/s 202 of the Indian Contract Act. And whether in view of the said power the bank can be held to be an assignee of the interest in the decree.The trial court as well as the High Court decided in favor of the defendant

Judgment- It was decided that the power given was one coupled with intrest and therefore cannot be withdrawn. moreover the transaction entered into under that document amounted to be an equitable assignment of decree in favor of the bank to the extent necessary to discharge the appellants debt to the bank.

Reasoning – It was decided so by the Supreme Court on the following grounds-
It was clear from the tenor of the document as well as the terms that was a power coupled with interests. According to section 202 of the Indian Contracts Act if the agent ahs an interest in the property that forms the subject matter of the agency sought to be created via the power of attorney in dispute the agency cannot be terminated to the prejudice of such an interest. Moreover where an agency is created for valuable and authority is given to effectuate a security the authority cannot be revoked.

Palaani Vanan
v.
Krishna Swamai Konar

Material Facts- There was a preliminary decree in a mortgage suit in favor of one Sethu Madhav Rao against amongst others the present appellants. There was a decree a final in August Next year the decree was assigned by Sethu Mdahav Rao to one Govinda Kanan on 19th july1939. Govind Kanan executed a Power Of Attorney to one Vedayascahar authorizing him to execute the decree .On 3rd February Govind Kanan assigned the decree to Krishna swami the present respondents. Later Govind Kanan sent a notice to the judgment debtor and to Vedyasachar revoking the Power Of Attorney. The execution petition before the lower court was to recognize the assignment dated 3rd February.

Issue Involved-The issue to decided was whether the notice served on Vedayshar was a valid and has the effect of revoking the Power Of Attorney?

Judgment – The court recorded that it was argued that the Power Of Attorney is irrevocable it being a power of attorney creating an agency coupled with interest under section 202 . This section recites what the English courts have to say on this point Kouch CJ, in 1896 said ” where an authority/power is coupled with interest it is irrevocable unless there is an express stipulation to the contrary ; but the right of the agent to renumeration. Although stipulated for in the form of the part of a property to be produced by the exercise of power is not an interest in this sense”

Again in 1848 Wilde CJ, “But it is said a factor for sale has an authority as such to sell and when after wards comes under advances he thereby acquires an interest may thus have an authority and an interest , the authority thereby becomes irrevocable. The doctrine here implied that wherever there vests in the same person an authority and an interest the authority is irrevocable, is not to admitted without question” The learned judge also cited from the book by Bowstead on law of agency the relevant parts where it is said “where the authority of an agent is given for the purpose of effectuating any security or of protecting any interest of the agent it is irrevocable during the subsistence of such security” this court said was the test to determine whether an authority is irrevocable or not.. Court also refereed to the wordings of the power of attorney ” I shall not for whatever reason cancel without paying the amount expanded by you” The primacy of the object the court decided was to recover on behalf of the principal the fruits of his decree. It contained incidentally a provision for the employment of the agent in order to realize that decree. It provides that his remuneration shall be ½ of the proceeds recovered by him. But the object is not to secure any interest of the agent . The document itself shows that it can be revoked under the two circumstances
1) By consent of both the parties
2) By payment of that amount out of pocket.
There fore this not an agency coupled with interest.

M. John Kotiah
v.
A Divakar

Material Facts-This suit was originally filed for the grant of an injunction restraining the defendants from interfering with the plaintiffs possession and management of the properties and from demolishing one of these properties The two properties are a double storied building and a vacant premises. in Hyderabad. Pending the suit the petitioner prayed for the issue of a temporary injunction . The trial court denied the injunction but thought it fit to appoint an advocate receiver. The appeal was made and it was upheld for the reason that the power of attorney was created an interest in the immovable property in favor of the petitioner. The court came to the conclusion that the power of attorney was not an irrevocable one An appeal was preferred against this order and it was contended that the attorney is an irrevocable one since it recited that the power cannot be revoked for a period of ten years.. It was also argued that the document created an interest in favor of the petitioner which was different from an interest in immovable property therefore no registration was required.

Issue Involved- whether the power of attorney creates an interest coupled with power and is therefore irrevocable?

Decision- To arrive at the judgment the court discussed the power of attorney in question in great detail clause by clause. To mention briefly – clause one states that the plaintiff is to manage control and supervise the development of the property. Clause 2 says that he can rent or lease any part of the property. The most relevant clause here is clause 10 which reads as follows ” The principal hereby undertakes not to revoke this power of attorney till all the disputes are pending in his name for and on behalf of the principal and until all his dues and the renumeration of 5% of the total value of the property is fully discharged and paid to the attorney and further undertake not to revoke this power of attorney for the next ten years”
After this the court analyzed the statement given in this regarding Bowstead On agency where the author clearly points out that the mere fact that a power is declared in the instrument granting it to be irrevocable does not make it so. Irrevocability requires something further. Next the learned judge had quoted from ” CORPUS JURIS SECUNDUNM” ” The interest to which an gent gets in the estate or property must be simultaneous with the power given to him in order to give him a power coupled with an interest and nor .this reason an interest in the result of the exercise of the power as distinguished from an interest in the subject matter of the power itself, is insufficient for if the agents interest exists only in the proceeds arising from an execution of power the power an the interest cannot be simultaneous in point of time since the power in order to produce the interest must be exercised and by its exercise it is extinguished

Thus it will be seen that if the interest created in the agent in the result or proceeds arising after the exercise of the power then the agency is revocable and cannot be said to be an irrevocable agency.

They also said that if o a construction of the document and in the light of the facts the document does not prima facie satisfy the condition for the creation of a power coupled with interest than merely because the document itself describes the agency to be an irrevocable one it does not become so. The provision of the Indian contract act were cited where in other remedies are provided where the agency is revoked within a period for which it was said to be irrevocable but that does nor make these documents irrevocable. They said that incases in where a document creates a power coupled with interest it is irrevocable in law still the parities can by agreement make it revocable but in cases where it is revocable it cannot be irrevocable merely by writing the same in the agreement .In light of all these reasoning the court decided that the document was a revocable power of agency.

Smt. Nagari Nayak
v.
D.C. Tumkur

Material Facts- The plaintiff is a hotel owner at tumkur. She had applied for loan to the Cannara Bank local Branch. She had done so against the security of the properties which were mentioned the power of attorney in question. The bank required an irrevocable power of attorney in addition to any other security which might have been taken from
The plaintiff. When the document was given for registration it was impounded for reasons of being improperly stamped. under section 34 of the stamps act. The sub registrar treated this document as a deed of mortgage. And keeping that in mind he levied a fees of Rs. 8305 and laos a penalty of Rs. 6,805.An appeal was made and it was found that this document was a owner of attorney and that too an irrevocable and therefore it required to be stamped as per the requirements under entry 4.this is an appeal against that decision.

Issue Involved- The nature of the document( whether it created an interest and was therefore irrevocable or not) had to be determined in order to decide what was the prescribed fees for that document?

Judgment- The court decided that it was an irrevocable power of attorney.
It was argued that the loan was advanced against other security offered by the plaintiff. The power of attorney was issued only at the instance of the bank and hence it cannot be called as irrevocable. The court quoted the relevant passage from the disputed document which is being reproduced ere “and whereas the principal has sought a loan of Rs15000 from the attorney against the security of the scheduled properties to construct an office and shops etc. ad whereas the attorney has required the principal to execute an irrevocable power of attorney in favour of the attorney.- to sell, alienate and mortgage or otherwise deal with the property at a price deemed fit and reasonable by the attorney at his sole discretion and appropriate the same proceeds first towards the interest costs and than reduction of the liability”. The court then cited section 202 of the Indian Contract Act and decided that as per that section no agency can be terminated where the agent has an interest in the property which forms the matter of agency in this case they decided that an interest is definitely created in favor of the bank Therefore it cannot be unilaterally revoked. Hence this document falls in the category of the document which are to be stamped as per the provisions of entry 4 of the Indian Stamps Act.

Govindkoss Krishna Koss
v.
Gopesjhwar lalaji Maharaj

Material Facts-This case has come as a second appeal to the high court. n the year 1896 one Ganga Bai widow of the plaintiffs paternal grandfathers brother built a temple for a local deity in Madras .In the year 1900 she executed a Bhot ptara in which she mentioned the facts of her having built the temple and also getting the idols of the deity that were to be worshipped in that temple getting them installed therein and setting aside a fund of Rs 40000 for their Sva puja and other festivals of the temple and for the salaries of the temple servants. The sum was left with the plaintiffs father Krishnadas and he was to a pay monthly Rs 200 for the expenses she then added a sum of 5000 to the original fund. She then mentioned that all the property was worth Rs 45000. these were delivered to the family deity Guru shri Krishanvati. She also provided that the successors of the gurus shall perform the seva and the ceremonies of the temple and the property was not to be used for any other purpose besides that of the templ.In 1904 the said Krishnaavati created a power of attorney to Krishanads giving him certain powers to manage the property since he had to be constantly absent from Madras where the temple was located. In 1906 the attorney holder died and the agency was terminated. The said lady Krishna vati then executed a power of attorney in favor of the deceased son who stepped into his fathers shoes and continued to mage the property In 1914 the principal died , her son then executed afresh power of attorney in favor of the plaintiff. This power of attorney ahd scheduled which said that the original fund had now been reduced to 39000.Then the same principal executed another power of attorney in favor of the plaintiff giving him more powers than earlier. After some time a dispute arose between these two and the power of attorney was sought to be revoked. he suit was therefore filed by the plaintiff.

Issue Involved- Can the defendants revoke this power of attorney unilaterally

Decision- The court decided that this power of attorney was a revocable one.
The court said that looking at the wordings of the instrument which were as follows “that a power of attorney though irrevocably granted shall b revocable on strong proof of gross mismanagement on the part of the said attorney” it is clear that the document is not an irrevocable power of attorney but it was a power of attorney irrevocable on certain grounds only but not on all other grounds. This means that it is merely an instrument coupled with a condition that it will no be revoked except on certain grounds. Such a promise is not an enforceable one. Therefore it does not become irrevocable merely by that being written on the power of attorney. The second contention of the plaintiff was that this agency was a n irrevocable one also because the contract of agency was coupled with some interest of the agent. That the fact that the temple itself was built for the benefit of plaintiff’s family was also alleged. But this was not accepted as it could not be shown by any evidence that he formed a joint family with the builder of the temple or that the sum of money used was in any way joint property of these two. All the properties that were used were exclusively in her name. The argument put forward was that the temple was made for the spiritual and other worldly benefit of her family members as she had orally recited on many occasions. The court rejected this argument and said that if it was so the spiritual benefit does not amount to an interest within the definition of interest under section 202 of the Indian Contract Act. The object of the agency was not to enable the agent to realize any of his interests.

Observations On The Basis Of Case Analysis
After discussing the view of the courts on the question of revocability of power of attorney which is unanimously same irrespective of the court or the judge we are now in a position to summaries the basic premise and the legal principle that is involved in this concept. Following common conclusions can be derived from all these cases-
# If the power given to the attorney is coupled with an interest it is irrevocable
# To decide whether a given power is coupled with interest or not regards are to be given to the facts of each case and the wordings of the instrument itself.
# The following have been considered to be ‘power coupled with interest’ in the above discussed cases.
# The right of an agent to remuneration though stipulated in the form of property to be produced by exercise of power is not an interest in the required sense.
# If the power is irrevocable as per the test laid down the parties are nevertheless free to make it revocable by an express stipulation to the contrary.
# If the power is revocable than the parties cannot make it irrevocable merely by writing that the instrument is irrevocable.
# The position in our country is the same as that in England.
# A power of attorney is automatically terminated if- One of the parties to the instrument dies or becomes insane, The principal becomes insolvent or bankrupt, any specific condition in the instrument is breached, the business comes to an end.
” Courts refer to Indian Contract Act provisions to determine this question

Conclusion
The conclusion that can be arrived at the end of the paper is that the position with regard to the revocability of power of attorney is well settled in our country. The test laid down here seems to be a well-established principle in common law as various English jurist have also expressed the similar opinion on this point. Not only this the test laid down also seems to be very just and fair. None of the parties are wrongly prejudiced if the test is applied objectively. Such well- settled principles lend certainty to business transactions and day to affair. Now since the position is so well settled the masses on an advice from their legal advisors shall know in an instant how to frame their instrument in such a manner and the objectives ( whatever they may be behind creating a power of attorney) are attained and they do not suffer later on account of uncertainty in law.

Though there is a specific act pertaining to Power of attorney but it is a very precise and brief one , the basic principles of these document are governed by the law of agency as provided for in the Indian Contract Act. A power of attorney may be of two types-
1) General 2) Specific-
The test to determine under which category a given document falls is as to what is the subject matter in respect of which power is given and if it is restricted to some specific matter it is specific else it is general.

Construction of a power of attorney- There are two main rules in construing a power of attorney
.1) The operative part of the deed is controlled by the recitals wherever there is any ambiguity
2) Where authority is given to do particular acts followed by general words the general words are restricted to what is necessary for the performance of the particular acts

Situations Where Law Permits Revocation Of Power Of Attorney- A Case Study Approach
The statutes are silent as to when a power of attorney can be revoked and therefore we have to r3ely on case laws to determine in what circumstances a power of attorney be revoked.

Therefore in the following pages various cases decided by the Hon’ble Supreme Court and High Courts of various states have been analyzed to determine what is the test laid down to decide whether a power of attorney can be revoked or not. After this case analysis only we would be a position to arrive at an answer to this issue regarding revocation of power of attorney.

Loon Karan
v.
Iva John

Material Facts- The appellants was indebted to the bank . he executed a power of attorney in favor of the bank authorizing the bank to execute a decree obtained by the debtor against a third person and credit the realizations to the debtors account. The power of attorney inter alia recited as follows ” I am heavily indebted to the bank of Jaipur Ltd. and my liability is partly secured by the pledge of my goods and where a major part of my liability is unsecured and I have agreed to appoint Jaipur Bank to be my true and lawful attorney to execute the deed which may be passed in my favor and do things on my behalf and credit to my account the sum which may be realized in execution of the said decree. I irrevocably nominate and constitute bank of Jaipur to represent me, to proceed in execution of the decree of the Agra Suit and to realize and recover the decreetal amount.. To withdraw any amount deposited in court with regard to the said decree”.

The decree was passed in favor of the appellants . Thereafter the bank levied execution of the decree The execution application was signed by the bank manger though it was in the name of the appellant as his attorney6 holder. The appellants objected to it saying that the power of attorney relied by the defendants have been obtained by false representation and assurances. The assurances were alleged to be promises by the bank to lend the appellants certain sum of money which the did not eventually lend. Therefore no sum is payable to the bank The objection was overruled by the trial court.

Issue Involved- The only question in appeal was whether the power of attorney executed in favor of the bank was a power coupled with interest and therefore irrovacble u/s 202 of the Indian Contract Act. And whether in view of the said power the bank can be held to be an assignee of the interest in the decree.The trial court as well as the High Court decided in favor of the defendant

Judgment- It was decided that the power given was one coupled with intrest and therefore cannot be withdrawn. moreover the transaction entered into under that document amounted to be an equitable assignment of decree in favor of the bank to the extent necessary to discharge the appellants debt to the bank.

Reasoning – It was decided so by the Supreme Court on the following grounds-
It was clear from the tenor of the document as well as the terms that was a power coupled with interests. According to section 202 of the Indian Contracts Act if the agent ahs an interest in the property that forms the subject matter of the agency sought to be created via the power of attorney in dispute the agency cannot be terminated to the prejudice of such an interest. Moreover where an agency is created for valuable and authority is given to effectuate a security the authority cannot be revoked.

Tips on Preventing Internet Crime…


Here’s a list of ways in which you can prevent becoming a victim of an Internet scheme:
• Don’t assume a company is legitimate based on the appearance of a website.
• Be wary of businesses that operate from P.O. boxes or mail drops.
• Ensure you understand all terms and conditions of any agreement before agreeing to a purchase.
• Be suspicious when payment is requested by money transfer before goods will be delivered.
• Do not reply to e-mails asking for personal banking or credit card information.
• Ignore request to assist in placing large sums of money in overseas bank accounts.
• Contact the actual business that supposedly sent the e-mail to verify if the e-mail is genuine.
• Contact the Better Business Bureau to determine the legitimacy of a company.
• Do not give out your social security number to complete a transaction.
• Do not provide credit card information if requested through unsolicited phone calls or e-mails.
• Promptly reconcile credit card and bank statements and be on the lookout for unauthorized charges.
• Immediately report unauthorized transactions to your bank or credit card company.
• Do not respond to lotteries that charge a fee to take delivery of your prize. Legitimate lotteries do not charge a fee to receive a prize.
• If it sounds too good to be true, may be it is.

LOOK HARSH BUT TIME TO TIGHTEN THE NOOSE. CASTRATION FOR SEXUAL PREDATORS?


Although the idea of introduction of castration as alternative punishment for serial rapists and child molesters would not be easily acceptable in our country, all of us must understand that age old traditional punishment of sending such offenders to incarceration for a specified term has hitherto proved futile. Something concrete must be devised so as to suppress their sexual fantasies and obsessions.

On April 30, 2011, an Additional Sessions Judge of Delhi currently posted at Rohini courts, Dr. Kamini Lau while convicting a person for raping his minor stepdaughter and awarding him rigorous imprisonment for ten years took the opportunity for calling upon the need for a full public debate with regard to imposition of Castration (both surgical and chemical) as an alternative punishment for the offence of Rape and Molestation. Terming the same as crying need of the hour, she even directed that the copy of her instant order be sent to Union Law Ministry, National Commission for Women and Delhi Commission for Women.

Although there may be a difference of opinion in legal circles whether a Judge of a subordinate/trial court while dispensing justice can make such an observation as such kind of ideas are usually mooted by Judges of the Supreme Court or High Courts which is referred as obiter dicta , one thing is crystal clear that there is an urgent need for thorough re-appraisal of prevalent laws relating to Rape and Sexual Assault/Molestation. Hence without going into the question whether Dr. Lau exceeded her authority, it is incumbent on our law makers to take serious cognizance of the issue in question without any delay.

There is no denying the fact that sex crimes are different from other crimes. Sex involves the most personal and private aspects of people’s life. In recent years, we all have witnessed a spurt in rape, molestation and other sexual offences. It is highly unfortunate that the women, particularly, young girls of today are not considered safe anywhere especially in big metro cities. Hardly any day passes when we don’t read or watch news report of any rape or sexual assault incident both in print or electronic media. The stringent punishment provided for such heinous crime appears to have virtually no deterrence on offenders who continue to violate the law with impunity.

As per the figures contained in latest available edition of “Crime In India” pertaining to year 2009, a report which is brought annually by National Crime Records Bureau, although charge-sheeting rate in respect of rape/molestation cases against women is over 90 per cent, the conviction rate is highly dismal, presently standing at below 30 per cent. Of course, this figure excludes a large chunk of unreported incidents as a whopping number of victims of such crimes prefer to keep mum either owing to fear of mental or social trauma coupled with lack of family support or else because of criminal intimidation by alleged offenders.

The process of surgical castration, called orchiectomy, involves the removal of the testes, which are the source of testosterone or the male sex drive. The idea behind the procedure is that once the testes are removed, the resulting loss of testosterone will eliminate sexual desire and the ability to respond the sexual stimulus. On the other hand, use of harmone suppressors also known as chemical castration requires regular injections of a testosterone-sapping hormone called Depo-Provera. Originally developed as a women’s contraceptive, Depo-Provera drastically reduces the sex drive when used on men and limits their fertility. The subject will experience a decrease in sex drive and a reduction in sperm production, erections and ejaculation. The goal of Depo-Provera is not to create impotence or infertility but to create “erotic apathy”, thus making the subject lack interest, if not capacity, to have sex.

California was the first State in the United States to specify the use of chemical castration as a punishment for child molestation. California amended its penal law to include the provision for chemical castration in September, 1996. The law became effective in January, 1997. It was a result of society’s anger towards repeat offenders and the previous law’s inability to protect victimized children. While the court has discretion to impose chemical castration as a condition for parole for first time offenders, it is a mandatory condition for parole for repeat sex offences against children under thirteen. Montana was the next State to pass such a law in April, 1997. Besides these two, there are seven other States viz. Florida, Georgia, Iowa, Louisiana, Oregon, Texas and Wisconsin which have such a law in place.

Poland had passed a legislation for forcible chemical castration for child molesters coupled with psychic treatment during the term. Germany and Israel are other examples of developed countries where voluntarily chemical castration is a punishment for child rapists. Similarly, Madoza, a province in Argentina passed a law in March, 2010 which rules the use of chemical castration for rapists but they must voluntarily go for it. Now since castration for sexual offenders has been operative for over a decade and a half in different countries, it is imperative for India too to explore such a system in place.

In March 2010, the Ministry of Home Affairs uploaded the draft Criminal Law (Amendment) Bill, 2010 on its official website perhaps for obtaining feedback from the civil society. The Bill, inter alia , tends to substitute the word “Rape” with “Sexual Assault” in newly-drafted section 375 of the Indian Penal Code (IPC). Further it also proposes to cover the cases of penetration by a man (either by any part of his body or by any other object manipulated by him) into the anus, urethra and mouth of any woman in addition to hitherto regarded penile-vaginal penetration. Then it raises the age of consent for sexual intercourse both for a married as well as unmarried girl/woman to eighteen years in lieu of present law which stipulates the same at sixteen and fifteen years, respectively .

Although the Bill can be broadly seen in tune with the recommendations of 172 nd Report of Fifteenth Law Commission of India ( March, 2000) on the subject relating to Review of Rape Laws except on one aspect i.e. the Report had recommended making the offence of “Sexual Assault” gender-neutral phrase. Be that as it may, at least an initiative has been taken by the government almost a decade after the aforesaid report. It is hoped that the Bill is soon tabled in the Parliament and expeditiously enacted into law so as to effectively address and tackle the contemporary dimensions of sexual assault which have undergone drastic variations in recent years.

However, the incumbent UPA-2 government deserves applause for tabling the much awaited Protection of Children from Sexual Offences Bill, 2011 in the Rajya Sabha during this year’s Budget Session. The Bill is aimed at protecting children from offences of sexual assault/harassment and pornography along with provision of special courts for trial of such offences.

At the outset, it can be concluded that although the suggestion as made by Dr. Lau regarding the introduction of castration (surgical or chemical) as an alternative punishment for serial sexual offenders looks too harsh on face apparent but at the same time everyone would agree that current law(s) have failed miserably in curbing ever increasing instances of rape and sexual assault/molestation throughout the nook and corner of our country especially against hapless minor children. The punishment for such heinous crime(s) should be at least of such a degree so as to act as a strong deterrent for others.

It is highly hoped that the UPA dispensation would kick-start a wider public debate on the subject. Simultaneously, the Law Commission of India ought to take due notice of the issue either suo motu or else after formal reference by the government. After taking the viewpoints of all stakeholders viz. the jurists, feminist groups, social organizations and notably the legal fraternity coupled with thorough analysis of its possible fallouts upon our society, the Commission should come out with its comprehensive report over this vexed issue at the earliest.

INPUTS FROM HASAN KHURSHID

Talking to ‘Lawyers Update’, noted jurist Fali S. Nariman said, ” My instinctive reaction is to applaud what has been recently recommended by a Delhi Court. The punishment recommended does fit the crime. The horrendous offence of rape debases and stigmatises the victim as almost no other offence. It has been proved that a long term of imprisonment is no deterrent. Something more drastic is definitely required to put the fear in the perpetrator. I would have no compunction if a court is empowered, whilist convicting an accused person of the offence of rape, to impose a punishment that is as hurtful and as traumatic as the accused has inflicted on his victim! If you say this is uncivilised, my answer is: so is the death penalty for murder.”

Another noted lawyer, Priya Hingorani, partially agreed with Nariman, saying, ” I approve this idea with conditions that it should be prescribed for rapists of minors, serial offenders and gang rapists. Moreso, the trial courts should not be empowered to pronounce castration. It should be confirmed by High Courts. All rape cases should be fast tracked and full protection should be provided to the victim, as in the result of delay in trial, accused persons start putting  pressure on the victim to hush up the case. The message will go down and such stringent provisions will act as deterrent.”

Sharply reacting to the views of Nariman as well as Hingorani, Dr. Rajat Mitra, Director, Swanchetan Society for Mental Health, and rape victims Counsellor, said, ” I consider it a barbaric act from stone age. I do not see how it is going to deter anyone from raping a woman. It is only going to make the rapist cleverer and think of killing the victim so she can not identify the offender in police station or courts. It can lead to miscarriage of justice. Rape is one crime where there are many false allegations and some serve a prison term without their having committed it. Such a punishment seems barbaric when seen from this perspective. The whole world today is thinking of alternatives to retributive justice in order to bring reforms in criminal justice system and this seems really retrograde.”

To know the facts on ground level, ‘Lawyers Update’ talked to Inspector Surender Jeet Kaur, SHO, Police Station Kamla Market, Delhi, who has been instrumental in rescuing minor girls from brothels in her area. Inspector Kaur said that where is the need for castration when so many stringent provisions are available ranging from life imprisonment to capital punishment in certain cases. The problem is not with the quantum of punishment, it is more than enough provided it is pronounced soon without lapse of time. The problem is with the implementation of the process of law. We need fast track courts, with one or two appearances of the victim, that too through video conferencing. Statement  of the victim under section 164 should be given due weightage. Repeated appearances of the woman victim is not practically possible. The embarrassing cross examination and trauma of prolonged litigation suffocates, humiliates and frustrates the victim. At times she is threatened or persuaded by the offender and finally gives up by abstaining to appear. The accused gets benefit of doubt under such circumstances and goes scot-free. Hence, amelioration of the existing process of law in rape trials is the answer to the nightmarish problem.