Introduction:

The voting rights guaranteed to the citizens of a country form the crux of “democracy” in a nation. The power bestowed upon the people of the country brings with it the responsibility to rationally decide the administrative head of this extensive institution for a limited tenure. However, certain barriers prevent citizens from freely exercising this right in India, though it has constitutional backing as per the Supreme Court of India’s decision. It is important to note that progress has been made in eliminating these barriers, for instance, by recognizing the right to reject all candidates and adding the NOTA (None of the above) option in the voting machines. Still, we are far behind from attaining this right in its absolute sense. In most cases, we even fail to realise the existence of such barriers and understand it as a normative process. This is primarily the result of society’s ignorance towards seeking a thorough analysis of its basic rights.

International Covenant on Civil and Political Rights (ICCPR)¹ grants us the freedom of speech and expression under Article 19. According to Aristotle, we are all political animals, we should always be granted the right to express ourselves in a free manner. The journey of this freedom struggle has, indeed, been a tough one for the developing human civilization.

If we look into the historical perspective, we find the trial of philosopher Socrates in the year 399 BCE as a perfect example regarding the curtailment of the Right to free speech and expression on a public platform. He was charged with two impious acts: Firstly, for failing to acknowledge the gods that the city acknowledged. Secondly, for introducing strange gods into society. It was concluded that he did this to corrupt the youth of the city-state as the trial progressed.

In another case in 1633, Galileo Galilei was found guilty of heresy (controversial or unorthodox opinions held by a member of a political, religious or philosophical group) and was sentenced to lifelong imprisonment in his home where he later died in 1642. We need to understand that Galileo was sentenced just for holding the faith and belief that our planet revolves around the sun and as it was against the belief of the Catholic Church. Though, it was later found to be scientifically true.

As mentioned before, the practice of the curtailment of our basic rights was popular for a time unknown. After witnessing many such cases of stifling, we have abolished this practice to some extent. However, absolute perfection lies far ahead, maybe on an apparently utopian level.

In recent times, a new issue has augmented into the limelight. One of the most basic features of democracy is the public right to choose who they want to ascend the throne for the administration of the territory in relevance. The right to vote instills firm confidence in the conscience of individuals as the right possesses the power. Power has its own emotive value. It leads to encouragement which consequently impacts the functioning of the political system of governance in a positive sense. Unfortunately, the political system of India arises from a nation in making that attained its independent identification not more than a few decades back. This results in the obvious dilemma of chaos in the voting system. We see a reflection of it in contemporary times too. Though its blow is softer than before, the taint on this democratic exercise of election is evident enough. There are a few factors that act as impediments to the smooth flow of election-related practices and trigger the stance of almost every pertinent electoral philosophy.

Discussions regarding the same should be taken as a priority to provide the finishing touches to the making of India, that is Bharat. Here too, adherence to the constitutional provisions should be mandatorily kept in mind while the formulation is in its concluding phase. Before anything else, the main requirement is the correct observation and recognition of these obstacles in the system.

 

The Issue of Apparent Equality:

Article 326 of the Constitution of India² explains the clause of adult suffrage in the process of elections. It grants every citizen of the country, who is not less than the age of eighteen years, the right to vote in direct elections. The term “every” further widens its scope and takes into account the Indian nationals without any discrimination based on colour, religion, caste, income, gender, et cetera. The Constitution specifies some entities that are disqualified from the process altogether on reasonable grounds. The voters’ age was earlier specified to be twenty-one years but the Constitution (sixty-first Amendment) Act of 1988³ reduced it to the current aforementioned limit. From one perspective, this was also serving as an obstacle to the right expression of the right to vote as it further conveyed that our developed maturity bracket started from twenty-one years of age. The amendment was necessary to encourage the youth of this nation and thus, was successfully passed by the Parliament.

On a superficial level, it might appear as if we have achieved equality when voting rights are in the picture, but the reality is disappointing. The gender ratio improvement is at a slow pace. Some sub-sections of castes are not aware enough of the power they have in their hands. At times, restraints are made regarding exercising this right and no legal actions take place after that. Voices are stifled. The pooreither choke on money given by politicians to press on a certain icon or feel that the entire procedure is useless as they are not economically strong. Incorrect financial associations for voting rights are made by them as the former capitalistic scenario stays intact, making them believe that the worth of their vote is less than that of a rich person’s vote.

Equality may be present and functioning on paper but the ground reality reveals the façade established in contemporary times. Active campaigning is a way for betterment in this case. Unless people are deliberately made aware, equality cannot be completely achieved.

Fewer Facilities for the People with Disability:

When it comes to handling the problem of lack of awareness, normative measures can be put into place as a remedy. However, the administration of voting is a much more complex aspect that the authorities have to deal with. All citizens are not the same, not only in ideological terms but also in physical ability to perform the part of voting. In this case, the ambit of legitimate voters includes in itself people with disability and holds an obligation to facilitate adequate services for them to exercise their rights. Physical disability of all types should be taken into consideration while forming ballots. Braille scripts on the buttons should be present to remove all possible ambiguities that the blind citizens might face.

For handicapped people, assistance should be ensured in all electoral locations. Labours and equipment to make voting comfortable should be put in place. Moreover, the responsibility should not be restricted to a mere formality. The administration should strictly keep a check on the implementation of these services.

Due to the absence of such basic facilities, the ratio of these types of citizens has fallen on the charts. Even the smallest of improvements might help in sparking internal awareness and lead to a landslide input in booth voting.

 

Lack of Information about the Candidates:

It has now become a usual practice to witness politicians with a plethora of criminal records, both in conviction and pending, sitting at the top tier in the country’s political structure. The actions they perform from their seat of power are also often seen to be inclined towards a radical approach. This, in most cases, goes beyond the democratic boundaries established under the Constitution. Not only violent activities, but financial frauds also increase in the higher strata when people having unethical backgrounds get chosen as representatives via elections.

A barrier to the undisturbed flow of voting is formed in scenarios like these as a lack of information about a politician’s conduct keeps the voters behind the veil. Such a politician gets an upliftment in the power stairs based on the outer appearance, promises and influential strategies. After some time, the real image of that person comes out when the presence of evil under his desk starts to get obvious of the maladministration and the public realises all this. Unfortunately, the orthodox rule has no U-turn present any more than to wait for the end of the person’s tenure. Then too, it is nothing more than a chance to find a better replacement as in those years the obstacle rises even higher.

Escaping from this has a simple solution, but requires a tough stance from the Election Commission of India. Though it is appreciable that the said commission has been trying well in the recent past to initiate changes in the electoral system. Presenting the list of judicial cases and their status on a public platform may clear the fog vis-à-vis the confusion in the voters’ minds about the character of the politicians. On the other side too, the political heads may strive towards reducing the crimes that they entertain and are a part of. They would certainly want to escape any transparent display of the same. Furthermore, this step shall help in surging the credibility of the organizing authority and illuminate trust among the voting members.

 

Violation of Right to Secrecy of Vote:

With the right to vote, the right to its secrecy comes as its complementary entity. Sadly, the democratic setup of India post-independence has been a volatile one on this objective. Earlier, ballot papers were used to cast votes. The ballot boxes were often looted from the polling stations to manipulate the vote count or nullify the result in a particular locality. Understandably, security strictness was light and alternatives for a secure voting system were being explored.

Now, Electronic Voting Machines (EVMs) are used for casting votes for a political party in direct elections as a replacement for the handwritten chit submission process. The machines are not exactly looted now but the manipulation practice is carried out by using the art of reprisal, duress, and coercion. Parties send out anonymous workers to trade votes for cash or other favours. The objective of facilitating a healthy republic procedure is derailed and the principle of voting as per personal bias and understanding factor is demolished. This entire operation covers mass eligible voters and thus creates an impactful persuasive effect on the results. The essence of this right is taken away by fear or favour, leaving no space for the element of secrecy to fit in. The sanctity of the electoral institution suffers harsh blows and leads to the injustice that has been present in society in contemporary times.

For dealing with this, legislative actions have become a necessity. Ground administrative staff may turn lethargic if instructions are not conveyed properly and strictly. Effective screening of the happenings in the locality can help in identifying the source of similar operations. Adhering to fresh legal provisions with a focused approach by the Election Commission of India predicts a positive prospectus in this paradigm. Eliminating this barrier should indeed be a priority as it is linked to unethical transactions with the poor and the not so well educated. It can have consequences far worse than one can imagine as the fire for participating again has the potential to grow bigger every time. The last thing this nation-in-making wants now is a rapidly augmenting corrupt network. 

Role of Media Houses in Political Polarization:

The public’s trust in the global media houses has been downgrading since it started protecting and painting the lies of high-authority officials and presenting them as golden words of gospels. If we dig a little deeper into the not-so-recent past, we find US President Eisenhower’s lies about the U-2 spy plane, President Johnson’s lies about the war in Vietnam and President Nixon’s lies about Watergate as some very firm instances to support this point. Moreover, these shreds of evidence were extracted by scratching just the superficial level of the pit that stores the darkest secrets of history about the wrongful manipulation of media by using means of fear and favour.

Political polarization is on the rise. The strategy used by a country’s government to fund or threaten them well has been serving as a helpful tool for inclining the press and turning it into their mere puppet. Humanity is crushed under their vicious acts of spreading propaganda and half-truths.

The importance of a free and independent media is to be realized not only by the journalists but also by the people who run a democratic state which is captured in the cobweb of sectarian interests. Correspondents who try to counter the traditional practices of biasness are pressurized, terrorized and are pressed on their soft emotional spot until they finally break. The politics of “fear or favour” used by tyrants, who hide behind the façade of one of the most successful world leaders, has led to the creation of a population where more than half are brainwashed, and the rest are silenced to such an extent that even their screams cannot be heard.

The whole notion of journalism has been forcefully altered by the power-hungry forces that are converting it into a toy for the mere purpose of distraction, diversion and entertainment. This is unacceptable. This spread of misinformation and factually incorrect news leads to the creation of false biases, inclining the audience towards a specific political ideology. The right to vote does not remain free from the shackles of dirty politics and the constitutionality of this right is infringed when psychological influence comes into the picture. Thus, there is a need for people to trust reliable and credible sources than getting news from any portal just because it has established a brand value.

Conclusion:

With the advancement of time, new technological breakthroughs are discovered. As a method to ease the path for exercising the right to vote, these technological updates can be used in the system to facilitate a better voting atmosphere for the citizens. Witnessing the plight of the polling staff, it is advisable to create a more friendly and accommodating structure in the stations. Though casting votes may seem like a short-term process, the efforts put in to reach a decision is not an easy task. Above that, when the aforementioned barriers stand in the way of the voters’ thought process, the difficulty rises to an unhealthy extent. There is a need to bring transparency and accountability in the methodology without which the democratic stance can collapse.

Endnotes:

¹https://treaties.un.org/doc/publication/unts/volume%20999/volume-999-i-14668-english.pdf

² https://legislative.gov.in/constitution-of-india

³https://www.india.gov.in/my-government/constitution-india/amendments/constitution-india-sixty-first-amendment-act-1988

This blog is authored by Prabhav Tripathi, a student of Institute of Law, Nirma University.

 

 

There are 4 pillars of the democracy: Legislature, Executive, Judiciary and the Media i.e. press. They are allotted with different powers and hence, they are circumscribed into their respective limits only. The legislature is assigned with the function to make or enact laws; the executive woks to implement or execute those laws enacted by the Parliament and the 3^rd pillar i.e. judiciary checks the validity of those laws along with their implementation and interpretation in the best possible manner. This helps in maintaining a system of separation of powers as well as a set up of check and balance which aids in minimizing the corruption.

The Supreme Court and the High Court review the laws and held them void if find contrary to the law of the land i.e. the Constitution of India. Like in the case of Shreya Singhal v Union of India[i], the division bench of Hon’ble Justice J. Chelameswar and Justice R.F. Nariman rightly held Section 66A of the Information Technology Act violative to the Article 19(1) (a) of the Constitution of India and hence, declared it as unconstitutional.

While doing so, the courts are required to use or to take help from various aids of interpretation – internal and external aids of interpretation. Proper interpretation of the words used in the statute holds a great value. For instance, the words “may”, “shall” have different meaning and carries a power to signify a distinct meaning in the context in which they are used.

The courts while interpreting the provisions of the statute adopts two important principles of interpretation of statutes named as Ejusdem Generis and Noscitur a Sociis. We will make a comprehensive study of both of them.

 

1.    “Ejusdem Generis”

·       Ejusdem Generis is a “canon of interpretation”.

·       It is a latin term which denotes “of the same kind”.[ii]

 

1.1  Definition:

This rule specifically talks about construing the meaning of words- general words vs. specific words. Means, if general words that followed by some specific words in a provision, then general words will have the same meaning as of specific words and no other or different meaning apart from which is already being used. That is to say, the general words would not be given a wider meaning. The general words would be interpreted in the light of those specific words used in the provision.

In other words, when a general word follows specific word of distinct category then the general words may be given a restricted meaning of the same category.

For example: there is an Act called the Cooked Breakfast (Fictitious) Act 2015 which has an applicability to Bacon, Sausages, Fried egg or similar foods. Here, the question arose before the court that, whether Toast, Burger, Candy are included and can be constituted in the Act or not. So, according to the rule of ejusdem generis, Toast is included in the Act but Burger and Candy are not because all the specific words Bacon, Sausages, Fried egg are breakfast related words and it is not common to have burger and candy at the time of breakfast. So, here we can say that the general words Burger, Toast, Candy have derived restricted meaning according to the specific word Breakfast.

This doctrine is significant when the language of the provisions is ambiguous in nature and provides for more than one meaning. So, to resolve the conflict, judiciary makes use of this principle to interpret the provisions in such a way that is not contrary to the intention of the legislature. 

1.2 When Does the Rule of Ejusdem Generies Applies?

The application of ejusdem generis can be understood with the help of a case R. v. Edmundson.[iii] It applies when:

1.     the statute is enclosed with an enumeration of some specific words;

2.     the general word is subsequent to that enumeration;

3.     there is an absence of any expression indicating different legislative intent;

4.     the subjects of the enumeration establish a category or a group all together;

5.     that category or group isn’t exhausted by such enumeration.

These 5 essentials for the application of the rule of ejusdem generis were also raised by the Supreme Court in the cases of Amar Chandra Chakraborty v. Collector of Excise[iv], and Uttar Pradesh State Electicity Board v. Harishanker[v].

1.3 Case Laws Regarding Ejusdem Generis

·       Kochunni v. State of Madras[vi]

In this case, it was observed that the rule of Ejusdem Generis is that when general words follow particular and specific words of the same nature, then the meaning of the general words must be restricted to the things of the like or ditto nature as those specified.

·       Siddeshwari Cotton Mills (P) Ltd v. UOI[vii]

In this case, the Hon’ble Supreme Court of India made efforts in interpreting the language of section 2(f) of the Central Excise & Salt Act of 1944 w.r.t. notification no. 230 & 231. The provision includes the specific words- bleaching, dyeing, printing---organic process. The court has to decide what all can come in the general word- ‘any other process’. The court notably said that, here the specific words include those that pinpointing the change which lasts longer. That is why, the general word must be of the same nature.

2.     Noscitur a Sociis

·       Noscitur a Sociis is a “canon of construction”.

 

2.1  Meaning of Noscitur a Sociis

Here, Noscere denotes ‘to know’ & sociis denotes ‘association’. Therefore, noscitur a sociis refers to ‘know from the association’.

When a situation arises in which 2 or more words are susceptible to the analogous meaning or vulnerable to the related/similar meaning are bring together, then such words need to be appreciated in their cognic sense. They take their color from each other, i.e. these words would be interpreted in light of the meaning carried out by other words used in the provision. The context of the more general is to be understood in accordance with the context of less general word. Here, the meaning of the more general word is restricted or limited only to the meaning of the less general. The more general will derive its meaning by the company it keeps i.e. the less general words.

In other words, when the legislature has used a word in the statute which bears many meaning and therefore, cause ambiguity in understanding the same then it has to be understood in the context of the associated words i.e. know the words from the association.

 

2.2 When Does Noscitur a Sociis Not Apply?

Noscitur a sociis cannot be applied in case where it is clear that the wider words have been deliberately used by the legislature in order to make the scope of the defined word correspondingly wider. Where the object of the Legislature in using the wider words is clear and free from ambiguity, the rule of construction cannot be applied because this canon is used to find out the true intention of legislature, so by applying this rule we cannot limit the scope of words which are deliberately used to widen the scope.

 

3.     How Does The Rule Of Noscitur a Sociis Is Different From The Rule Of Ejusdem Generis?

     The maxim “noscitur a sociis” means that, a word is determined by the words that surround it, i.e., within the context. This principle is applied either to enlarge or restrict the meaning of a word within the confines of a document. There is nothing called as specific or general word in applying the principle of noscitur a sociis. Here, the more general word is interpreted with respect to the less general word. When a word is ambiguous, the judge looks at the rest of the document to determine its correct meaning. On the other hand, “ejusdem generis” is a latin maxim which means that where there is a list of words i.e. specific words in a statute followed by some general words, the general words are limited to the same sort of items as are mentioned in the specific things set out in the list. The doctrine of “ejusdem generis” is a facet of the doctrine of noscitur a sociis. Here, the general words are interpreted with respect to the specific words.[viii]

4.     Conclusion

Ejusdem generis and noscitur a sociis are the canons used by the judiciary to remove the ambiguity in the language of the provisions of a statute and thus, aids in coming up with the best possible interpretation of the provisions. The main thing upon which the courts are more focused is to fulfilling the intent of the legislature that it had while enacting such law. It is important for applying the rule of ejusdem generis that there is a set of specific words constituting a genus and that is followed by some general word. Similarly, for applying the rule of noscitur a sociis, there must be some more and less general words, where the more general derive its sense from their associated words. These doctrines play a vital role in clarifying the concepts and make the laws unambiguous in nature.

 

This blog is authored by Maitreyi Agrawal, student of Amity Law School, Amity University, Madhya Pradesh.

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[i] (2013) 12 S.C.C. 73

[ii] Ejusdem generis legal definition of Ejusdem generis, https://legal-dictionary.thefreedictionary.com/Ejusdem+generis, visited on 25 March 2022.

[iii] (1859) 28 L.J.M.C. 213

[iv] 1972 AIR 1863

[v] 1979 SCR (2) 355

[vi] 1960 AR 1080

[vii]  1989 AIR 1019

[viii] What are the difference between Ejusdem Generis and Noscitur a Sociis, https://www.pathlegal.in/-What-are-the-difference-between-Ejusdem-generis-and-Noscitu-blog-1227147#:~:text=Both%20terms%20are%20related%20to,contractual%20documents%20of%20the%20law.&text=Ejusdem%20generis%20is%20used%20for,interpreting%20questionable%20words%20in%20statutes., visited on 26 March 2022.

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In the earlier times, the flora and fauna were available in abundance. It was not realized that a time will come in the future for which there will be a need to save and protect the environment and wildlife. However, asthe time passes and situation arises when the environment and wildlife start to end, so to safeguard and protect them various legal provisions where enacted by the legislature. It was the time that demanding an urgent need of strong legislations to preserve the endangered species. As a result, actions were taken in the direction to fulfill the said object.

In the law of the land,[i] various amendments took place via 42^nd Amendment which is also known as Amendment Act, 1976 or “Mini Constitution” .The reason being it introduced many changes in the Constitution of India and also added significant provisions for the protection of wildlife and forests in part IV[ii] of the Constitution.  Further, it enclosed the protection of wildlife and forests in the 7^th Schedule of Constitution of India that talks about the powers assigned to the Union and the State.[iii]

 

List of Provisions Given in the Indian Constitution for Protection of Wildlife

 

1.     In Constitution, we are having Fundamental Rights in Part III from Article 12 to 35. Among them Article 21 is highly significant with regard to protection of wildlife.[iv] Article 21 of the Indian constitution is of vital importance as it provides a right- Right to life to every person whether citizen or non-citizen and judiciary has widen its ambit by expanding its meaning to the life of animals as well.

While expanding its meaning, Supreme Court of India noted that every species, animals are also possess right to life and personal security, and the word “life” includes all forms of life whether as animal life or human life.

2.     Afterwards, we are having Directive Principles of State Policy (DPSP) in our Indian Constitution[v], comprises of Articles 36 to 51. These are the principles which the State has to abide while forming any policy. They act as a guidance to the state but they are not enforceable in nature.

Among them, Article 48 and 48 (A) talks about wildlife. “The State shall undertake to organize agriculture as well as animal husbandry on modern and scientific lines and shall take steps for the improvement of the breeds and preclude the slaughter of cows, calves and other milch and draught cattle's.”[vi]This Article provides for the security of cows, calves and other milch and draught cattle which helps in maintaining ecological balance.

3.     Indian Constitution has Fundamental Duties conferred upon its citizens.[vii]They emerged via 42^nd Amendment[viii]in conformity with Article 29 (1) of the Universal Declaration of Human Rights.

Article 51(A) (g) of Indian Constitution is relevant in context of protection of wildlife. As per Article 51 (A) (g), the Indian citizen is duty-bound to take care the natural environment. They have a duty to protect as well as to preserve forests, wildlife, lakes etc in the best possible manner. This Article makes the citizens duty bound for protecting and also improving the environment which is a prominent necessity of the survival of living creatures and wildlife.

In this way, Indian Constitution empowers judiciary to protect and preserve the most important part of the natural life i.e. flora and fauna. Moreover, to protect and preserve wildlife, the parliament of India passed Wild Life (Protection) Act, 1972. The Act provides for the establishment of Wildlife Advisory boards and the appointment of wildlife wardens and other staff to implement the Act and to achieve the objective of protecting wildlife.

 

The Indian Judiciary has protected endangered species in India.

With the commencement of new provisions and Articles under Indian Constitution, judiciary has attempted to resolve various issues regarding protection of environment and wildlife. It has exercised its powers and by way of judicial activism, it has protected endangered species in India. And this is illustrated by many of the cases that the judiciary has entertained and, thereby resulted in the protection of endangered species in India.

Ø  Case- Animal Welfare Board of India v. A. Nagaraja & Ors.[ix]

In the state of Tamil Nadu, there is a historic and long-established game named as “Jallikattu”. In this sport, bulls are nudged via sharp sticks and their tails are twisted to the utmost that it may lead to the fracture of vertebrae. After such kind of arrangement, bulls are released over the crowd of people who are supposed to jump over the hump of bull. Along with it, red chills are rubbed into their eyes for aggression and also forced to drink alcohol. This all results in death of bulls by stabbing them with knife and jumping over them and dragging them over the ground leads to broken of their bones. Animal Welfare Board of India (AWBI) filed a case in SC to ban the practice of Jallikattu and it was get banned by the Ministry of Environment and Forest and SC also upheld the enforcement of ban of the sport of Jallikattu. SC also made observations for protecting the “life” of animals and declared that animals are also having right to life and personal security and the word “life” includes all forms of life whether as animal life or human life under Article 21 of the Indian Constitution.

Ø  Abdul Hakim Qureshi v. State of Bihar[x]

In this case, petitioner approached to SC for questioning the constitutionality of ban on cow slaughter in Bihar on the ground that this is in contradiction to the Article 25 of Indian Constitution(fundamental right of freedom of religion) and this ban is abstaining them from sacrificing cows on Bakr-Id Day as a religion tradition. SC highlights that neither of their Islamic texts or books including Quran and Hidaya made it compulsory to sacrifice cows only and instead grant them to go for camel or goat. Henceforth, SC held that prohibition on cows slaughter is constitutional and not at all infringe the fundamental rights and also states that Article 48 is for the animals that have potential of yeiling milk or have capacity to work as drought.

Ø  Sachidnand v. The State of West Bengal[xi] 

It has been observed in this case that in cases where the problem of ecology is brought before the court, the court is bound to bear in mind Article 48 (A) which direct that the state shall endeavor to protect as well as to improve the environment and to conserve the forests as well as the wild life of the country. It implies that the vital importance shall be given to shield and to look after the endangered species at any cost.

Ø  State of Gujarat v. Mirzapur Moti Kureshi Kassab Jamat[xii]

In this case, Supreme Court held that “it was evident from the combined reading of Articles 48 and 51 A (g) of the Indian Constitution that citizens must show compassion to the animal kingdom. The animals have their own fundamental rights. Article 48 specifically lays down that the state shall endeavor to prohibit the slaughter of cows and calves, other milch and draught cattle.” Supreme Court also stated that the objective and purpose of the Parliament behind enacting Article 51A was for it to be read with Articles 48 and 48A that to ensure that the character and essence of all the provisions must be honored.

Conclusion & Analysis

From the past time to the present, there are a lot of differences arisesnot only in the field of science but also in the mentality of people. Now, we are more serious about the fact that the environment and wildlife, both are very crucial and essential part of natural resources as they are equally important for the survival of human beings. Considering this fact, Parliament has enacted various provisions for safeguarding the wildlife. Like in Constitution, we are having Article 21, 48, 48 (A), 51 A (g) which specifically talks about wildlife protection. In addition, the parliament of India has passed a separate Act which specifically talks about the protection of wildlife, named as Wild Life (Protection) Act, 1972. The Act provides for the establishment of Wildlife Advisory boards and the appointment of wildlife wardens and other staff to implement the Act and to achieve the objective of protecting wildlife. Nowadays, Judiciary is more concentrated towards preserving the endangered species and takes the related cases with all sincerity. Various PILs are also being filed in order to save the environment and wildlife and to prevent endangered species. Henceforth, accurate actions taken by the parliament and judiciary made it possible for the next generation to be introduced with the species which can’t be able to in absence to those meaningful actions.   

This blog is authored by Maitreyi Agrawal, student of Amity Law School, Amity University, Madhya Pradesh.

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[i] The Indian Constitution, 1950

[ii]Part IV- Directive Principles of State Policy

[iii]Concurrent List- Union and State

[iv]Right to Life, Article 21 of the Indian Constitution

[v]Part IV of Indian Constitution

[vi]Article 48 of Indian Constitution

[vii]Part IV-A of Indian Constitution

[viii]42^nd Amendment Act, 1976

[ix](2014) 7 SCC 547

[x]1961 AIR 448

[xi]AIR 1987 SC 1109

[xii][xii]AIR 2005 SC

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Introduction

The case named Tukaram & Anr. v State of Maharashtra[1] was a landmark case as far as rape and its laws are concerned. The incident took place in 1972, Chandrapur district of Maharashtra which shook the nation. The decision was given by the Supreme Court was something that caused outrage within the nation. Several protests were organized by many activists such as Vasudha Dhagamwar (who submitted an open letter to the Chief Justice of India about this matter) and Upendra Baxi Raghunath Kelkar Lotika Sarkar) against the decision. Also it led to further introspection and lead to review of rape laws in India and the definition of consent was redefined.

Facts of the case

Mathura, a sixteen-year-old girl, who was an orphan who worked as a house help at the Nushi’s place. She was in love with Ashok, Nushi’s nephew. Also she developed sexual relations with him. She wanted to marry him, to which his brother objected. As a consequence of which he filed a kidnapping case against Ashok and Nushsi’s husband. The head Constable Baburao recorded the statement. Ashok as well his family was brought to Police Station. Approximately around 10:30 AM, everyone was heading out of police Stations post recording of their statements.

The accused Ganpat asked Mathura to stay while everyone was leaving the station. The accused turned the lights off, shut the door and allegedly raped her after asking to disrobe herself, thus outraging the modesty. After he was done, another accused Tukaram, who was heavily intoxicated, could not rape, but fondled with her private parts.

Mathura told her family and friends about the incident. Her hymen exhibited previous ruptures, but she had no other injuries on her body, according to the medical examination. She was between the ages of 14 and 16, and her hymen revealed old ruptures.

Issues

The Issue before the court was whether there was any activity of rape was committed by the accused?

Judgment

The case went through the due judicial process. The judgement given by the three courts i.e. sessions court, high court and supreme court. The sessions court went on to give an erroneous decision leading to acquittal of the accused. When the matter reached to Bombay high court, the decision given by sessions court was reversed and the accused were convicted. On further appeal to the apex court the court went on to give absurd decision which led to wide spread protest and eventually lead to necessary amendments in various legislations.

 

Session’s Court

Sessions court acquitting the accused said that the guilty was habituated to sex and her consent was obvious in order to satisfy Ganpat, one of the accused. According to them sexual intercourse did take place but it was not rape.

He referredto medical reports and concluded that there were no body marks on the body of the victim, thus use of any kind of force is automatically ruled out.

Also the medical reports mentioned that the girl is between 14-16 years of age, thus amounting to rape irrespective of consent[2]. But the judge went on to say that the evidence for the same is not sufficient.

Bombay High Court

Unlike the session’s court, the High Court held the accused guilty for rape. They were of the opinion that what happened over there was a passive submission. And the same cannot be correlated with consent.

Also, the fact that no resistance was shown by the girl cannot be concluded as consent. The policemen were obviously at a superior position, thus showing any kind of resistance to them would have been detrimental for her and her family.

According to the High Court, the girl's lack of semen on vaginal smears and pubic hair was due to the fact that she was checked twenty hoursafter the incident occurred and that she must have bathed at any point between the incident and the medical check-up.

The policemen were complete strangers to the girl. So it is highly unlikely she was consenting for the act by the policemen.

But High court did admit that the medical evidence produce is ‘weak evidence’ and it cannot be admissible.

Supreme Court

In 1979, the supreme Court gave its verdict and they overturned the High Court’s decision. The Apex Court had a similar view with that of Session’s Court. They were of the opinion that this is a case of consensual sex and the girl did consent for the same.

Also they didn’t find any injury marks on the victims’ body, thus there was no resistance from her side.

Aftermath of the Case

The judgement led to massive protests from the side of activists, lawyers etc. There felt was a need of strong and necessary amendments to the existing legislation that encapsulates all the necessary blunders from the side of Courts.

a) Medical Test: Medical evidence is admissible in court under Section 45 of the Indian Evidence Act, which allows medical experts' opinions to be used in judicial procedures. The Supreme Court, however, determined that because this is a sort of 'opinion evidence,' it should be considered a 'poor type of evidence.' In criminal prosecutions, medical evidence has always been crucial. It tries to prove that either the accused was guilty of rape or that such evidence can be used to prove that the plaintiff's testimonial was forged, proving that the victim was a bad person[3]. As an outcome, the sentence of the offender is lowered. As a result, the Evidence Act's provision 155(4)[4] was revoked.

In Pratap Misra v. State of Orissa[5], the victim was referred to as a "concubine" since she was in a relationship with a married man and later wedded him in a bigamous marriage. Three men raped her when she was on a vacation with her husband. The court, however, acquitted all three on the grounds that the victim had no visible injuries and thus must have given her consent. Furthermore, throughout intercourse, she had just wept rather than yelled.The victim of gang rape miscarried after a few days, and the court stated that if the intercourse had been forced, she would have miscarried immediately rather than after a few days.

b) Testimony of the victim in the court: It is extremely difficult for the victim to establish the absence of consent, particularly in cases of incarcerated rape. The victim bears the burden of proof in proving that she was raped against her will. But then, under the Indian Evidence Act, Section 114A[6] was inserted, which provides that if victim denied the consent in any cases of rape, the court shall presume that she did not consent for the same and the burden of proof of will shift to the defendant[7].

The Supreme Court ignored the precedent set by Justice Krishna Iyer in Nandini Satpathy[8], in which he criticised the practise of summoning ladies to the police station and declared it a serious breach of Section 160(1)[9] of the CrPC.

Conclusion

Despite the fact that India's rape laws have been revised over time, the number of rape cases continues to rise year after year. This act not only causes significant bodily harm to the victim, but it also has catastrophic psychological consequences such as PTSD, depression, flashbacks, sleep difficulties, and more. Improving the protection and security of women in the state would be one step toward eliminating this crime. More than strict rules to punish wrongdoers, men's attitudes and mentalities, such as those of the Supreme Court Judges in the Mathura Rape Case, need to be changed.

AUTHORED BY: PUSHPAM JHA, STUDENT AT SYMBIOSIS LAW SCHOOL, NOIDA

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[1]Tukaram v. State of Maharashtra, (1979) 2 SCC 143

[2]Section 375(6) Indian Penal Code, 1860 (act 45 of 1860)

[3]Samiksha Kandya, 'Sentencing in Rape Cases in India: An Analysis' (2021) 26 Supremo Amicus [411]

[4] Section 155 of Indian Evidence Act, 1872 (act 1 of 1872)

[5] Pratap Misra v. State of Orissa (1977) 3 S.C.C. 41

[6]Section 114A of Indian Evidence Act, 1872 (act 1 of 1872)

[7]Samiksha Kandya, 'Sentencing in Rape Cases in India: An Analysis' (2021) 26 Supremo Amicus [411]

[8] Nandini Satpathy v. P.L. Dani and Anr., (1978) 2 SCC 424

[9]Section 160(1) od Criminal Procedure Code, 1973 (act 2 of 1973)

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