What does the law say about Prostitution? A legal check
DefinitionAny person, male, female or transgender involved in engage, offer, engage to offer in the business of sexual conduct in exchange for money, is called as ‘prostitute.’ Unlike pre modern era, prostitution is a gender-neutral term now. Section 2(f) of the Immoral Traffic Prevention Act define prostitution as, “the sexual exploitation or abuse of persons for commercial purposes or for consideration in money or in any other kind.” Poverty, marginalised groups, women being treated as an object, etc, are some of the various causes of prostitution. Sexual exploitation is increasing irrespective of gender & illiteracy. Acts that promote sex industry In India, talking about sex, giving children sex education, pre-marital sex is all deliberated a taboo. However, the sex trade throughout the nation is on demand. The other side platforms that fulfill this industry are –● Customer solicitation● Brothel management● Pimping or controlling the prostitutes● Sex trade/traffic Legal status and the legislation The legal status is always categorized into legal, illegal and legal with limitations. India’s legal status on the prostitution is legal but is limited and have certain restrictions. The Immoral Traffic Prevention Act It was passed in 1956 with an objective to prevent immoral traffic. The legalisation is based on how and where should the prostitution takes place. Section 7 states that prostitution should not be carried out within 200 yards from the public places, including schools, colleges, hospitals, hotels, and religious places. Rights of the sex workers’ Discrimination in our country is a core issue irrespective of which group they belong, be it marginalized groups or the sex workers group. Abused faced by the sex workers● Physical attacks● Harassment● Forced detention● No legal protection● High access to sexually transmitted diseases Recognition and RightsUNDP and the ILO accentuated the legal rights of the sex workers regarding their occupational health hazards, safety and standards of their workplace. The sex industry works on rights and non-judgmental laws, regulations and policies. Several international, national and regional commissions like UN Economic and Social Commission for Asia Pacific, Independent Commission on AIDS, UN SP on Right to Health, and the legislations like CEDAW insist to put pressure on – – the recognition of sex workers,– eliminate discrimination– their workplace with a safe environment,– equal treatment and protect them from abuse and vulnerability. The Apex Court of India recommend the sex workers to leave their profession in their own preference as they have the right to life as per Indian Constitution. Sex workers shall have the right to rehabilitation and ensure that rehabilitation homes do not abuse or detain them. Sex in public places is an offence. Illegal ActsProstitution is legal when it is consensual and not forced. Indian legislations safeguarded the rights of the sex workers by restricting and limiting the industry with barrier. The acts below, if acted upon, are illegal and are punishable under ITPA and IPC. – Procuration and importation of minor girl from foreign country (s.366A & 366B of IPC)– Buying and selling of a girl for the purpose of prostitution (s.372 & 373 of IPC)– Brothel management (s.3 of ITPA) and punishable for three to seven years and penalty of 2 lac rupees– Living on the earnings of prostitution of 18 yrs or older or a child (s.4 of ITPA) and punishable for 2 years and 7 to years respectively– Procuring, inducing or taking a person for prostitution (s.5 of ITPA)– Detaining the person inside the brothel premises, performing prostitution in public places, seducing a person under custody for prostitution are punishable (ss. 6-9 of ITPA)– Forced prostitution Authors:1. Ms. Roohi Babu, B.SC., B.L., (Hons), Advocate practicing at Madras High Court, with 5 years of experience in IPR and Family matters.2. B. Smruthi, 4th Year student of BA, LLB (Hons) at Saveetha School of Law, SIMATS, Chennai.
Bail and related guidelines
The Code of Criminal Procedure has well organized provisions of law relating to bail. Sections 436 to 439 deals with bail while s.167(2) deals with the default bail. These provisions bring a balance to the personal liberty of a person who is accused of an offence. DEFINITIONEven though the word ‘bail’ is used several times in several chapters of CrPC, there is no specific definition to it. But the judicial dictionary of Wharton’s Lexicon and Stroud defines bail as:“the setting free of the defendant by releasing him from the custody of law and entrusting him to the custody of his sureties who are liable to produce him to appear for his trial at a specific date and time.” The definition of Bail in Black Law’s Dictionary is:“procure the release of a person from legal custody, by undertaking that he/she shall appear at the time and place designated and submit him/herself to the jurisdiction and judgment of the court.” CONCEPTTo be more understanding, the bail is a form of surety. A person can be released with a surety of an amount which is nowhere determined previously. So, the monetary assurance is totally at the discretion of the court. The person can take recognizance with or without any surety. But, the discretion of the bail grant or refusal lies on the court(1). Normally, the bail applications would take time. In 2017, the Supreme Court directed that the disposal of such applications shall be made within a week of it (2). RIGHT TO BAILEvery person arrested has the right to be released on bail respective of his offence. Section 50 of CrPC states the right to be informed on the grounds of arrest and the right to bail. This section sets down the obligation of every police officer to be followed, when he arrests a person without warrant. It is his duty to –● Disclose the reasons and grounds for which the arrest is made.● Disclose that the person arrested is entitled for bail release● Disclose that the sureties might be arranged on his behalf. To whom bail cannot be granted?A person who does not oblige towards the investigation and who has been declared absconder, cannot be granted bail. A person against whom a warrant had been issued and is absconding or concealing himself in order to avoid execution of warrant and declared as a proclaimed offender in terms of Section 82 of the Code is not entitled to the relief of anticipatory bail.(3) KINDS OF BAILThe bail is broadly categorized into three:● bail in bailable offences;● bail in non-bailable offences; and● anticipatory bail.The offences are categorized into bailable and non-bailable offences. Bail in bailable offenceA bailable offence is defined in s.2(a) and it states that whatever offences are listed in First Schedule of the Code are bailable offences. A bail is an implied right for accused in a bailable offence. Since it is a matter of right, there is no question of discretion. The right of bail is absolute and not surpassable as bounded by s.436 of CrPC(4). “A man is presumed to be innocent till his guilt is proved to the hilt. Merely because an individual is involved in a criminal case, he is not denude of his statutory rights provided under Section 436 Cr.P.C.(5)” As for the concept of bond, the accused person can be released on bail with or without surety only after applying certain terms and conditions like –● a person on bail have no permission to leave the territorial jurisdiction unless there is a permission from the court or from the concerned authority/police officer● mark his presence whenever required● no tampering of evidenceThe bail can be refused if there is violation of any of these conditions. Bail in non-bailable offenceNon-Bailable offence is defined in s.2(a) as any other offence other than bailable offence. Section 437 deals with the bail in non-bailable offences. Here, Bail is not a matter of right and it is upto the discretion of the court. There are certain circumstances in which the bail is provided-● When the accused is under the age of sixteen● sick● a woman Also, if the person is believed to be guilty for an offence that is punishable with death or life imprisonment, then such accused shall not be granted bail irrespective of the age, sickness and gender as mentioned above. ANTICIPATORY BAILIn case of an anticipatory bail, the application is made before the High Court or Sessions Court. This is dealt in s.438 of the Code, which states the direction to grant bail to a person apprehending arrest. Therefore, The person released shall follow the directions like not leaving the country without prior permission of the Court; shall not induce or threaten any of the person acquainted with the facts of the case; shall present to the investigation when required. POWER OF HC AND SCSection 439 has laid down the special powers of the High Court and Court of Sessions regarding the grant of bail. There was this time when the HC had the power only to grant or refuse the bail, but not ordering or directing the arrests and custody of an accused person. This view changed in Sudeep Kumar Bafna v. State of Maharashtra(6). It is held that:“Some poignant particulars of Section 437 CrPC may be pinpointed. As observed in Gurcharan Singh vs State (1978) 1 SCC 118, there is no provision in the CrPC dealing with the production of an accused before the Court of Session or the High Court. But it must also be immediately noted that no provision categorically prohibits the production of an accused before either of these Courts.” CANCELLATION OF BAILThe cancellation of bail is dealt in section 439(2) of the Code of Criminal Procedure. The court can only cancel the bail if there is any abuse of bail order. Most of the factors that are considered to be abuse of bail are: when the person on bail interfere with the justice; if the bail is misused; there is an
Non disclosure of material facts before marriage
A Marriage, being a civil contract, mandates both parties to disclose material facts beforehand. Concealment of material facts amounts to cruelty, fraud, and many times becomes a valid ground for divorce under Section 13 of Hindu Marriage Act, on grounds of cruelty.(1) Moreover a marriage can also be declared also makes the marriage null and void. As Per Section 12 of Hindu Marriage Act, A Marriage shall be declared void and annulled by a decree of nullify- a. If a party’s mental or physical condition makes consummation of marriage a practical impossibility.(impotent).b. If any party has been suffering from mental disorder of such a kind or to such an extent as to be unfit for marriage and the procreation of children.(Section 5)c. If Consent of the party or guardian was obtained by fraud or force,d. If the wife was at the time of the marriage pregnant by some person other than the husband. However, Petition for annulment of marriage will not be encouraged under subclass (c) if- ● The Petition was filed more than one year after the force had ceased to operate or the fraud had been discovered. ● The Petitioner continued to live as husband or wife, with his or her full consent, even after the force ceased to operate or the fraud was discovered. And, Petition for annulment of marriage will be not be encouraged under subclass (d) if- ● The Petitioner knew that the other party was pregnant at the time of marriage. ● If The petition on this ground has not been filed within one year from the date of the marriage. If the marriage was solemnized before the enforcement of this act, one year from commencement of this Act. ● The Petitioner had marital intercourse with his full consent, even after the discovery of the concealed fact. Indian Courts on concealment of facts prior to marriage– REFERENCES: Authors:
What does the law say about Cyberbullying in India
What is Cyber Bullying? Insulting or threatening someone with the use of digital technologies. It can take place on – Definition by UNICEF: Cyberbullying is bullying with the use of digital technologies. It can take place on social media, messaging platforms, gaming platforms, and mobile phones. It is repeated behaviour, aimed at scaring, angering, or shaming those who are targeted. Examples include: Face-to-face bullying and cyberbullying can often happen alongside each other. But cyberbullying leaves a digital footprint – a record that can prove useful and provide evidence to help stop the abuse. (1) There are many forms of cyber-bullying. The degree and nature of these cyber offenses are also varied. Cyberbullies tend to resort to repeated behavior with intent to humiliate, scare, anger, or shame the targeted victims. Citing some examples of cybercrime and bullying, Are there any laws against cyberbullying? Prakhar Sharma vs The State of Madhya Pradesh: (4)In this case, the accused after creating a fake Facebook account of the victim posted some vulgar messages with the photos of the complainant which he downloaded from her original Facebook account. After enquiry, the police (Cyber Cell) recovered the phone and two SIM cards from the possession of the applicant. The prosecution has confirmed the involvement of the accused by obtaining the I.P. details from Facebook and confirmed the same with the I.P. details from cellular companies. The accused was found guilty under Sec 66 (c), 67, and 67(a)of the IT Act, 2000. State of West Bengal vs Animesh Boxi (5)The accused took private and nude photos of the complainant by hacking her phone. The accused then started blackmailing her that if she did not go for an outing with him then he would upload the pictures and videos on the internet and when the complainant disagreed then the accused uploaded the nude pictures and videos of the complainant on a porn site.The Court held that the convict by uploading the nude pictures and videos of the victim of this case in the virtual world is not only restricted to India but is available all over the world and everyday virtual rape is committed against the victim of this case when someone sees the video in the virtual world. Even for sake, the contents are removed from the virtual world but what will happen if anybody had already downloaded those and again it will spread in the virtual world and it will never end and virtual rape will be committed against the victim till the last day of her life.The accused was held guilty under Sections 354 D, 509 of the IPC and 66 C, 66 E, 67, and 67 A of the IT Act, 2000 CYBER DEFAMATIONCyber defamation occurs when a computer connected to the internet is used as a tool, or a medium to defame a person or an entity.Defamation has been defined under Section 499 of the Indian Penal Code (IPC) as whoever, by words either spoken or intended to be read, or by signs or by visible representations, makes or publishes any imputation concerning any person intending to harm, or knowing or having reason to believe that such imputation will harm, the reputation of such person is said to defame that person.However, it is to note that the law pertaining to defamation has been extended to Electronic Documents. Section 469 of the IPC – Forgery for the purpose of harming Reputation as been amended by the Information Technology Act, 2000 (IT Act) to include Forged Electronic Records.The current extract of the section 469 is as under – Whoever commits forgery, intending that the document or electronic record forged] shall harm the reputation of any party, or knowing that it is likely to be used for that purpose, shall be punished with imprisonment of either description for a term which may extend to three years, and shall also be liable to fine. ONLINE REPORTING OF CYBERCRIMES:https://www.cybercrime.gov.in/ REFERENCES: Authors:
Legality of Live in relationships in India.
Legality of Live in relationships: In the case of Indra Sarma vs V.K.V.Sarma, (‘MANU/SC/1230/2013’); the Supreme Court held that “Live-in or marriage like relationship is neither a crime nor a sin though socially unacceptable in this country. The decision to marry or not to marry or to have a heterosexual relationship is intensely personal.” Domestic Violence Act: Sec 2 (f) of the Domestic violence Act, 2005 defines the term “domestic relationship” means a relationship between two persons who live or have, at any point of time, lived together in a shared household, when they are related by consanguinity, marriage, or through a relationship in the nature of marriage, adoption or are family members living together as a joint family;According to Section 2 (f), even a Live in relationship can be treated as equal as a marriage as it falls under the definition of a domestic relationship. To eliminate any ambiguity the Supreme Court in the case of Indra Sarma (Supra) laid down the “Guidelines for testing under what circumstances, a live-in relationship will fall within the expression “relationship in the nature of marriage” under Section 2(f) of the DV Act. The guidelines, of course, are not exhaustive, but will definitely give some insight to such relationships. (1) Duration of period of relationship Section 2(f) of the DV Act has used the expression “at any point of time”, which means a reasonable period of time to maintain and continue a relationship which may vary from case to case, depending upon the situation. (2) Shared household The expression has been defined Under Section 2(s) of the DV Act and, hence, need no further elaboration. (3) Pooling of Resources and Financial Arrangements Supporting each other, or any one of them, financially, sharing bank accounts, acquiring immovable properties in joint names or in the name of the woman, long term investments in business, shares in separate and joint names, so as to have a long standing relationship, may be a guiding factor. (4) Domestic Arrangements Entrusting the responsibility, especially on the woman to run the home, do the household activities like cleaning, cooking, maintaining or up keeping the house, etc. is an indication of a relationship in the nature of marriage. (5) Sexual Relationship Marriage like relationship refers to sexual relationship, not just for pleasure, but for emotional and intimate relationship, for procreation of children, so as to give emotional support, companionship and also material affection, caring etc. (6) Children Having children is a strong indication of a relationship in the nature of marriage. Parties, therefore, intend to have a long-standing relationship. Sharing the responsibility for bringing up and supporting them is also a strong indication. (7) Socialization in Public Holding out to the public and socializing with friends, relations and others, as if they are husband and wife is a strong circumstance to hold the relationship is in the nature of marriage. (8) Intention and conduct of the parties Common intention of parties as to what their relationship is to be and to involve, and as to their respective roles and responsibilities, primarily determines the nature of that relationship. MAINTENANCE OF A WOMAN IN A LIVE IN RELATIONSHIP: Indra Sarma vs V.K.V.Sarma,(‘MANU/SC/1230/2013’); FACTS: The court held that the appellant, having been fully aware of the fact that the respondent was a married person, could not have entered into a live-in relationship in the nature of marriage. All live-in- relationships are not relationships in the nature of marriage.The appellant’s status was that of a mistress, who is in distress, a survivor of a live-in relationship which is of serious concern, especially when such persons are poor and illiterate, in the event of which vulnerability is more pronounced, which is a societal reality. Children born out of such relationship also suffer most which calls for bringing in remedial measures by the Parliament, through proper legislation. if any direction is given to the respondent to pay maintenance or monetary consideration to the appellant, that would be at the cost of the legally wedded wife and children of the respondent, especially when they had opposed that relationship and have a cause of action against the appellant for alienating the companionship and affection of the husband/parent which is an intentional tort. Authors:
Liability of endorsers (celebrities) for their brand endorsements
It is a long-standing practice of roping in celebrities such as film stars, sportspersons, etc, to endorse products of a particular. It is usually done as a marketing strategy to attract a wide range of customers as the said celebrity already comes in with an active fan base. To protect the interests of consumers in cases of misleading advertisements the Consumer Protection Act, 2019 was enacted. EFFECT AND PREAMBLE: MISLEADING ADVERTISEMENTS: Central Consumer Protection Authority:Under Section 10 of the Act The Central Government shall establish a Central Consumer Protection Authority. Duties of the Authority;As per Sec 18 of the Act, The Central Authority shall— Liability of celebrities INSTANCES IN INDIA; Authors:
Law governing surrogacy and matters connected to it in India
THE ASSISTED REPRODUCTIVE TECHNOLOGY (REGULATION) BILL, 2021; The Bill defines ART to include all techniques that seek to obtain a pregnancy by handling the sperm or the oocyte (immature egg cell) outside the human body and transferring the gamete or the embryo into the reproductive system of a woman. The Surrogacy (Regulation) Act, 2021. Important definitions under the Act; “Surrogacy” means a practice whereby one woman bears and gives birth to a child for an intending couple with the intention of handing over such child to the intending couple after the birth; “Altruistic surrogacy” means the surrogacy in which no charges, expenses, fees, remuneration or monetary incentive of whatever nature, except the medical expenses and such other prescribed expenses incurred on surrogate mother and the insurance coverage for the surrogate mother, are given to the surrogate mother or her dependents or her representative; “Commercial surrogacy” means commercialisation of surrogacy services, etc, including selling or buying of human embryo or trading in the sale or purchase of human embryo or gametes or selling or buying or trading the services of surrogate motherhood by way of giving payment, reward, benefit, fees, remuneration or monetary incentive in cash or kind, to the surrogate mother or her dependents or her representative, except the medical expenses and such other prescribed expenses incurred on the surrogate mother and the insurance coverage for the surrogate mother; “Intending couple” means a couple who have a medical indication necessitating gestational surrogacy and who intend to become parents through surrogacy; “Intending woman” means an Indian woman who is a widow or divorcee between the age of 35 to 45 years and who intends to avail the surrogacy; “Surrogate mother” means a woman who agrees to bear a child (who is genetically related to the intending couple or intending woman) through surrogacy from the implantation of embryo in her womb and fulfils the conditions as provided in sub-clause (b) of clause (iii) of section 4; Registration of Clinics: Section 3: No surrogacy clinic, unless registered under the Act, shall conduct or associate with, or help in any manner, in conducting activities relating to surrogacy and surrogacy procedures; (ii) no surrogacy clinic, paediatrician, gynaecologist, embryologist, registered medical practitioner or any person shall conduct, offer, undertake, promote or associate with or avail of commercial surrogacy in any form; (vi) no surrogacy clinic, registered medical practitioner, gynaecologist, paediatrician, embryologist, intending couple or any other person shall conduct or cause abortion during the period of surrogacy without the written consent of the surrogate mother and on authorisation of the same by the appropriate authority concerned; (vii) shall not store human embryo or gamete for the purpose of surrogacy and no sex selection shall be conducted. Section 11 (1) No person shall establish any surrogacy clinic for undertaking surrogacy or to render surrogacy procedures in any form unless such clinic is duly registered under this Act. (2) Every application for registration under sub-section (1) shall be made to the appropriate authority in such form. Reasons for which surrogacy is allowed: Section 4: No surrogacy or surrogacy procedures shall be conducted, undertaken, performed or availed of, except for the following purposes, namely: — (a) when an intending couple has a medical indication necessitating gestational surrogacy: the intending couple is in possession of a certificate of essentiality issued by the appropriate authority, after satisfying itself, for the reasons to be recorded in writing, about the fulfilment of the following conditions, namely: — (I) a certificate of a medical indication in favour of either or both members of the intending couple or intending woman necessitating gestational surrogacy from a District Medical Board. Authority: For the purposes of this item, the expression “District Medical Board” means a medical board under the Chairpersonship of Chief Medical Officer or Chief Civil Surgeon or Joint Director of Health Services of the district and comprising of at least two other specialists, namely, the chief gynaecologist or obstetrician and chief paediatrician of the district Legal status of a child born through surrogacy: Section 8. A child born out of surrogacy procedure, shall be deemed to be a biological child of the intending couple or intending woman and the said child shall be entitled to all the rights and privileges available to a natural child under any law for time being in force. Penalties:Section 38: Authors:
Rights of animals and laws against cruelty to animals
constitutional perspective read with THE PREVENTION OF CRUELTY TO ANIMALS ACT, 1960. Delhi High Court on the rights of Animals:The judgement given on 24th June, 2021, by HON’BLE MR. JUSTICE J.R. MIDHA, in the case of DR. MAYA D. CHABLANI vs. RADHA MITTAL & ORS. The judgement highlights the following points: Definition of Animal:The Act gives a simple definition to the term animal, stating that, “animal” means any living creature other than a human being; Authority under the Act:With a view to contain animal cruelty, the Act gave the provision for the central govt to establish a board called the Animal Welfare Board of India. Definition of Cruelty:CRUELTY IS A VERY BROAD TERM, TO AVOID ANY AMBIGUITY OF WHAT AMOUNTS TO CRUELTY, THE ACT HAS CLEARLY DEFINED CRUELTY AND ENLISTED CERTAIN ACTS THAT WILL AMOUNT TO CRUELTY: SEC 11 of the act defines what all amounts to Treating animals cruelly.― PUNISHMENT: Authors: