Litigation & Delays in India

The word 'Litigation' in common parlance is used to refer to a controversy before a law court or simply put a 'lawsuit', but with the total pendency at last count exceeding 30 million cases, in a country characterized by grave economic conditions like ours it has become a luxury which few can afford.

The Right to Litigate or थे Right to get Access to Justice, has been amply provided in our Constitution & other national as well as international instruments, but David Porter of US Navy puts "Litigation as the basic legal right that guarantees every corporation its decade in court" obviously he said that in context of the Courts of America, but the situation is no better here, rather worse, decade is replaced by 15 years (which according to one study is the average life span of a case in India[2]), clearly I don't mean to endorse or even acquiesce with such pessimistic views but the level of implementation or the justice delivery system required to give life to these provisions, are grossly inadequate, & are fraught with various imperfections & evils such as Corruption, Delays etc, …with delay being the major dent in the credibility of the system, as a famous saying goes "Justice Delayed is Justice Denied"…and due to these delays even after the most elaborately devised system of rights & obligations of people, being present, justice still remains a distant dream for the layman…but the silver lining is that Judiciary remains the most honest & trusted of the three governmental organs, & measures up remarkably well on the yardsticks of independence, fairness & acts as the custodian of the rights of the common man, it was meant to be & still commands respect, but the confidence it used to inspire among the people is corroding, the main reason behind the wounded credibility are the delays in justice delivery system.

The real culprit is the huge pendency of cases before subordinate courts right upto the Supreme Court. Justice S.B.Sinha recently in a day long awareness programme for Judicial officers 'termed this is a gigantic problem, and his lordship, who is also the chairman of Mediation & Concilliation Project Committee went on to say "these undue delays are making people shy from justice delivery system", Justice Sinha further remarked that "We should uphold the maintenance of law and Constitutional values and do not forget that access to justice to everyone should be given utmost preference"[3]

The main reasons behind this huge pendency, or to be exact the influx of a large number of cases, are recent socio-economic advances and the resultant sensitization regarding legal rights, हवe led to a flood of people, increasingly approaching the courts of law, for the realization of their rights, but the existing Indian Judicial System, I am afraid to say has not kept up with the huge population & educational boom, & is fraught with problems such as 'low judge to population ratio', and as a large portion of these cases are against the government, disputes which could have been resolved at the outset with the authorities itself, due to improper governmental administration, these disputes also end up coming before the courts, as to this matter Dr.Manmohan Singh in a discussion, referred to the survey conducted in Karnataka according to which in 65% of civil cases the Government was a litigant and in 95% the appeals filed by it failed, the great villainous role played by the governmental administration becomes apparent by this, Couple this with the rampant corruption, Shortage of Funds, Staff, Infrastructural shortcomings, and you have the perfect recipe of a disaster or more succinctly put a 'litigant's nightmare'

Coming to the solution, The Intellectuals at Law Commission coming out with a fantastic & realistically sound solutions every now & then & the implementing authorities & the people in power not paying the slightest heed to it, has become needless to say almost customary now, the same happened in the present context too, the Law Commission in its 120th report[4], submitted way back in 31-7-1987 recommended optimum figure of 107 judges per million by 2000, the ratio achieved by USA in the year 1981. It also recommended ratio of 50 judges per million of population, within a period of 5 years which was endorsed by the Standing Committee of Parliament headed by Shri Pranab Mukherjee, in its 85th report submitted in February 2002. The Supreme Court also directed increase in judges' strength to 50 per million in a phased manner. But despite all this, the strength of judges has not been increased, that is why also the judiciary is facing difficulties in tackling the problem of mounting arrears, the sorry state of affairs is apparent from the fact that India still has fewer judges than 15 per million, if compared to Canada [about 75 per million] & the USA [104 per million] it sounds drastically inappropriate to deal with the situation, furthermore The Law Commission in its 125th Report [5](1988) recommended introducing shift system in the Supreme Court. In 1999, the then Law मिनिस्टer, thought of shift system in all courts, but could not implement it. Shift system is in vogue in industrial establishments and some educational institutions because of necessity. With minimum cost, the shift system can yield maximum output, providing immense relief to lakhs of helpless litigants, endlessly waiting for justice, but in its entirety this system was never realised.

Another reason for the same is that judiciary accounts for just a mere meagre portion in the allocation of expenditure, for eg. In the tenth plan the judiciary was allocated a mere 0.078 per cent of the total expenditure, a small crumb more than the 0.071 per cent assigned in the Ninth Plan.

It is also pertinent to note here that the Prime Ministers have been traditionally averse to discussing Judiciary's ailments or the plight of litigation in India, and it was no different this time as well, where the torturous state of litigation figured nowhere in the Prime Ministerial Speech on Independence Day, though he made amends & accepted the problem very next day at a conference [6]

The Silver Lining is that if viewed from a different perspective, the Huge volume of new cases, coming up, is a definite sign of people reposing their faith in the administration of justice. It is a matter of contentment that the public at large continues to hold our judicial system by and large in high esteem despite their shortcomings and handicaps, and in order to sustain the continued faith of people in the justice delivery system – the huge pendency of cases need to be brought down to a manageable limit, so that cases are dealt & disposed in a more speedy & more efficient manner & to ensure that justice is hurried but not at all buried.

The brighter part of the problem is that the Anti-dotes to the problem, are not one but many, and if implemented with heart & soul, will reap great benefits.

ADR's Alternative Dispute Resolution Mechanisms, The philosophy of ADR systems is amply stated in the words of Abraham Lincoln "Discourage litigation, persuade your neighbors to compromise whenever you can. Point out to them how the normal winner is often a loser in fees, expenses, cost and time, as a peacemaker the lawyer has superior opportunity of being a good man. There will still be business enough."

Litigation through the courts and tribunals established by the State is one way of resolving the dispute which is an adversarial method of dispute resolution which leads to win-lose situation whereas in Alternative Disputes Resolution what is tried to be achieved is win-win situation for both the parties to the case. There is nobody who is loser and both parties feel satisfied at the end of the day. The ADR mechanisms include arbitration, negotiation, mediation and conciliation. Section 89 of the Code of Civil Procedure has been amended w.e.f. 1-7-2002 with a view to bring alternative systems into the mainstream. The challenge that we are facing today is bringing about awareness among the people about the utility of ADR and simultaneously developing personnel who will be able to use ADR methods effectively with integrity. This will not only provide speedy and inexpensive justice and reduce litigation, but will also bring peace and harmony in the society. Corporate entities & establishments are already reaping the benefits of ADR's, but its high time these ADR's are introduced in day-2-day litigation as well

Fast Track Courts
Fast Track courts have proved their mettle, & their importance cannot be emphasized enough, on the recommendation of the 11th Finance Commission, 1734 Fast Track Courts of Sessions Judges were sanctioned for disposal of old pending cases and the said scheme was to end on 31-3-2005. Out of 18,92,583 cases, 10,99,828 have been disposed of by these courts. Keeping in view the performance of Fast Track Courts and contribution made by them towards clearing the backlog, the scheme has been extended till 31-3-2010.

In view of the contribution made by the Fast Track Courts of Sessions Judges towards clearing of backlog, and number of huge pendency of cases triable by Magisterial Courts being 1,66,77,657 as on 31-12-2006, there is an urgent need to formulate a similar scheme for setting up of Fast Track Courts of Magistrates in each State and Union Territory.

Mobile courts
Mobile courts that help taking justice to the door-step of the rural would significantly help in fighting the backlog, Mobile courts are also being set up which would not only educate the rural folk about their rights and responsibilities and provide swift justice and create a feeling of law and judiciary being very close to them, but will also help de-clog the expanding docket of our overburdened courts.

Lok Adalats
In order to achieve the objective enshrined in Article 39 A of the Constitution of India, the Legal Services Authorities Act, 1987 was enacted to provide free and competent legal service to the weaker sections of the society to ensure that opportunities for securing justice are not denied to any citizen by reason of economic or other disabilities. To achieve that objective, Lok Adalats are being held at various places in the country and a large number of cases are being disposed of with lesser costs. Mobile Lok Adalats are presently in place in different parts of the State of Bihar and on the lines of steps taken by the High Court of Patna of holding mobile Lok Adalats, the other High Courts need also work on the same lines so that speedy and affordable justice could be made available to the litigants at their doorsteps.

Setting up of Gram Nyayalayas
Ministry of Law & Justice is going to draw a Gram Nyayalayas Bill with an objective to secure justice, both civil and criminal, at the grass-root level to the citizens, which would be the lowest court of subordinate judiciary and shall provide easy access to justice to litigant through friendly procedures, use of local language and mobile courts wherever necessary.

Last but not the least Plea bargaining - With the insertion of new Chapter XXI-A in the Code of Criminal Procedure by Act 2 of 2006, the concept of "Plea Bargaining" became a reality and part of our criminal jurisprudence. The practice of plea bargaining is prevalent in western countries, particularly the United States, the United Kingdom and Australia. In the United States, plea bargaining has gained very high popularity, whereas it is applied only in a restricted sense in the other two countries. Plea bargaining benefits both the State and the offender; while the State saves time, money and effort in prosecuting the suspects, the latter gets a lenient punishment by pleading guilty. One of the merits of this system is that it helps the court to manage its load of work and hence it would result in reduction of backlog of cases.

Plea bargaining apart, if the list of compoundable offences is widened and more offences are included therein and made compoundable, it too will help in making a dent in the mounting arrears and saving time of the courts.

Apart from these measures, increased use of technology, for e.g recording evidence through video conferencing, would reduce the hassles associated with a trial.

Concludingly, If followed properly the above measures would go a long way, to ensure the that ''litigation' for a smooth affair for a litigant, as this is very pertinent to ensure & sustain people's faith in judiciary, & in the last to nullify the very common bar room anecdote 'that in the average Indian litigation winner is the loser and the loser is dead'.

Examination in chief

I kept six honest serving men.
They taught me all I knew.
Their names were what and why and when
And how and where and who - - Rudyard Kipling

Introduction
It's been said, "A good lawyer turns evidence into fact and fact into truth." Because they bear the burden of proving the case beyond a reasonable doubt, prosecutors must call witnesses in every trial. Examination in Chief is the keystone in the prosecution's arch. It is also important to the defender who will call witnesses in support of the defensive theory. Direct examination is a vastly overlooked skill. Unlike cross-examination, there is very little written material to guide practitioners through the examination of their own witnesses. This is surprising because cases are actually won or lost on the fruits of direct examination.

Examination in Chief is one of the most subtle and sophisticated forms of advocacy. It is subtle because a good chief examination focuses entirely on the witness and their evidence. The evidence should appear to be flowing effortlessly from the witness. It should look easy. Whereas the witness should be memorable, the lawyer should not. Chief examination is sophisticated advocacy because during its course counsel is actually presenting their case, while trying to satisfy a multitude of objectives, such as maximizing the potential of each witness to present all relevant evidence in as logical, credible, persuasive and accurate manner as possible, while knitting all witnesses' evidence together in a coherent fashion in order to prove all the elements of the offence beyond a reasonable doubt. Examination in Chief thus becomes a starting point for any litigation. In the adversarial system of our country, it becomes a tool of extracting truth from the facts.

Hence it becomes quintessential at this juncture to define what "Examination in Chief" really means. Section 137 of the Indian Evidence Act defines the term "Examination in Chief."

Examination in Chief-
The Examination of a witness by a party who calls him shall be called his examination in Chief. Examination in Chief is the first examination after the witness has been sworn or affirmed. It is a province of a party by whom the witness is called to examine him in chief for the purpose of eliciting from the witness all the material facts within his knowledge which tend to prove the party's case. Examination in Chief is also known as Direct Examination.

Legalities involved in Examination in Chief.
a) A question based on supposition of fact not proved is improper.
b) Counsels are allowed to ask apparently irrelevant and consequentially inadmissible questions upon the promise to follow them up at the proper time by proof of other facts, which true, would make the question put legitimately operative.
c) The party examining a witness in chief is bound at his peril to ask all material questions in the first instance, and if he fails to do this, it cannot be done in reply.
d) If a question as to any material fact has been omitted upon the examination in Chief, the usual course is to suggest the question to the court which will exercise its discretion in putting it to the witnesses
e) There was no question of cross-examining the plaintiff travelling beyond the evidence of the plaintiff given in examination-in-chief and thereby giving an opportunity to make out a case in cross-examination
f) The corollary of it is that if a judge felt that a witness has committed an error or a slip it is the duty of the judge to ascertain whether it was so, for, to err is human n the truth and the chances of erring may accelerate under stress of nervousness during cross-examination.
g) But in exceptional circumstances there can be a cross examination of witnesses whose chief examination has been not been done.
h) But this situation is uncertain to quite an extent and there have been descending opinion regarding this.
i) On the examination-in-chief, a witness can only give evidence of facts within his own knowledge and recollection.
j) In all cases the facts from the examination in chief must be relevant. The answer must be upon a point of fact as opposed to point of law.
k) The conlusions of a witness as to the motives of other persons are inadmissible, motives being eminently inferences from conduct.
l) Leading questions may not ordinarily be put in examination in chief.
m) In cases where the witness proves to be hostile, he may be cross examined by the party calling him.
There are other legal provision of the Indian Evidence Act which are applicable here and are referred to in the later part of the project.

Objectives Of Examination In Chief
(1) Legally sufficient to meet the burden of proof, (2) understood and remembered, (3) convincing, (4) able to withstand cross-examination, and (5) anticipatory and contradictory of evidence that the opposition will present. Think of direct examination as your opportunity to construct persuasive arguments. The questions that will be asked shall subtly convey your argument. Conversely, use the arguments that you want to make at the end of the case to guide you in planning and preparing the questions you will ask on examination in chief.

(2) There are multiple objectives to examination in chief. The more significant are as follows:
A. Major Objectives
(a) the evidence must be admissible;
(b) the witness needs to present as persuasive and credible;
(c) each and every element of the offence must be proven beyond a reasonable doubt through the witnesses oral evidence and exhibits.

B. Minor Objectives
In addition, you are also trying to achieve the following slightly less essential, but still important, objectives:
(1) present a logical, complete and coherent theory of the offence;
(2) present each witness in the best possible light;
(3) use the evidence of one witness to support another so that a seamless cloth may be woven of the proven fact;
(4) fill in gaps in the evidence and attempt to explain any inconsistencies;
(5) shut down potential cross-examination thereby limiting the exposure of witnesses.
(6) allow the defence as little room to move as possible by minimizing the possibilities of a defence being supported through cross-examination of witnesses

Legal requirements for an examination in chief
Competency of your witness - The first legal requirement is that your witness must be competent to testify. To qualify as competent, a witness must have: (1) Understanding of the nature and obligation of the oath or affirmation to tell the truth, (2) Perception (knowledge) of the the relevant event, (3) Recollection (memory) of the relevant event, and (4) Ability to communicate

Relevance of your witness' testimony - The second legal requirement for your direct examination is that your witness' testimony must be relevant. Relevant evidence is evidence that has some (any) tendency; however slight, to make the existence of a fact of consequence to the case more or less probable than it would be without it.

Authenticity of matters of evidence to show that the item in question is what its proponent claims it is - The third requirement for your direct examination is that matters of evidence must be authenticated. You authenticate an item of evidence by making a prima facie showing that it is genuine.

Proper evidentiary foundation or predicate for the admissibility of the evidence - Certain items of evidence require special foundations to establish admissibility. For example, if your evidence is hearsay and, thus, presumptively inadmissible prima facie, but will be required to establish its admissibility under one of the hearsay exceptions.

Over and above this, the lawyer conducting examination in Chief must also be careful to stick to the legalities as mentioned above.

Lawyers's Preparation For The Examination In Chief:
(A) Planning Ahead: What is the Witness' Role?
1. The Theme of the Case.
2. The Order of Witnesses
3. What witness says

(B) Preparing the Witness.
1. Prior Testimony.
2. Current Testimony.
3. The Use of Documents to Refresh Recollection.
4. The Cross-Examination Drill.
5. The Rules of Evidence and the Need for Objections

(C) The Direct Examination:
1. Organizing the Direct.
2. The Form of the Question.
3. The Use of Non-Verbal Evidence.
4. To overcome with the mistakes that the witnesses have made.

Art Of Preparing A Structure For Examination In Chief:
1. Outline. The questions should be written in the lingo of the ear, not the eye. There needs to be a trial book maintained whose help needs to be taken. The entire process must look impressive and spontaneous to some extent. Maintaining eye contact is necessary.
2. Clarify. To make your questions clear, add only one new fact to each question. Compound questions invite objections. So do questions that are vague and ambiguous.
3. Build evidentiary bridges. There needs to be a connection between the witnesses one wants to present in the examination in chief. One needs to inter relate the witnesses to make it easy for the judges.
4. Employ transitions and signposts. There needs to be proper use of phrases to connect the matter in issue. Use of conjunction and transitions like "From here we move to" would help the judges understand the matter in a better way.
5. Make repetition persuasive. Repetition must be artful. There must be a repetition of things which are necessary. But such a repetition must be in such a way the opponent cannot object to the repetition.
6. Stretch the important parts. To dramatize a key point in examination in chief, learn how to "stretch-out" your questions. The things which are important should continue for a long time. At the same time, these aspects should remain fresh in the judges mind due to its prolonged nature of presentation.
7. Learn to mirror. Mirror some of the good characteristics of the witness. Adopting some of the characteristics of the witness, e.g., language, smile, tone of voice, eye-contact, etc. puts the lawyer on a better conversational level with his witness.
8. Have your foundations ready. Be prepared to authenticate and lay foundations for any exhibits that are going to be introduced to the witnesses. The goal should be smooth introduction of your tangible exhibits and a persuasive "tell and show" as you use the exhibits to add to the issue concerned.
9. Make your witness' personal knowledge clear. The non-expert witness must speak from personal knowledge. The lay witness can give lay opinion rationally based on the witness' personal perceptions. But a lay witness is not allowed to draw conclusions that call for technical, scientific, or other specialized knowledge.
10. Deflate the potential cross-examination. The examination in Chief must indirectly counter all the rebutting or all probably questions which may crop out of the cross examination. Hence one has to be cautious with the questions put forward.
12. Utilize open-ended questions for the important parts of the story. Questions starting with what, when, how, where etc are open ended questions. They help in giving a vivid description of the issue. And it also benefits the witness to answer at ease.
13. Avoid questions that suggest the answer to your witness. Leading questions should not be allowed to ask in the court, except for certain circumstances.

There are Golden Rules given by David Paul Brown for the Examination of witnesses: These golden rules alert the lawyer to ask questions according to the type of their witnesses. He has given several guidelines which a lawyer can follow for a worthwhile examination in Chief.

Dealing with the direct examination of a hostile witness, adverse party, or a person identified with an adverse party.
A hostile witness can be as unpredictable as a wild mustang stallion. If you don't rein him in, he can do more damage than good. The hostile witness can be asked leading questions with the permission of the court.

Critical Appraisal Of The System
The examination in Chief is one of the methods of finding truth from the facts. But this system has been corrupted to an extent that the witnesses have merely become puppets whose threads are with the lawyer.

Moreover since already discussed earlier examination in chief requires a lot of skill, hard work and art. A lawyer who may possess it shall be successful in his endeavor of reaching his aim. But in the entire scenario, what seems to be missing is the sense of justice involved. The technicalities involved and high pressure preparations quite often defeat the entire purpose of the activity, which was to reach the ends of justice.

Moreover the complicated justice system and even more complicated lawyers leave the witnesses baffled, confused, perplexed and lost. The advocate's object is to elicit all the facts relevant to the case s/he is presenting. How far does the adversarial type of litigation helps the purpose is still something to be ascertained.

Conclusion
An examination in chief must appear fresh, interesting, flowing, and conversational. This sounds easy, but requires a lot of work, research and preparation. The importance of Examination in Chief must never be underestimated. .A strong direct examination is an important building block that can lead to the success at the trial. Direct examination does not exist in a vacuum. It must be part of a coherent story told inside and outside the courtroom.

Effective examination in chief builds on a solid case foundation, and establishes client credibility and judge empathy. Like any performance, it requires good preparation; with the lawyer listening to the client first and then teaching the client how best to present himself. Then, at trial, the lawyer has to get out of the way of the relationship between the jury and the client. Turning over responsibility to the client may seem unnatural, and is always uncomfortable, but it is the best way to accomplish the goals of examination in chief, and the ultimate goal of winning the case for your client. Thus the skill of extracting information form one's own witness also requires a great amount of skill, labor, art, hard work.

What needs to be determined is the fact that not undermining the defects of the examination in chief, is there an alternative? Probably our country is not accustomed to the inquisitorial system. But at the same time, with the development of the alternative dispute resolution system like mediation, arbitration and negotiation, there can be things which can be incorporated in this system of rigorous truth finding mechanism.

Contempt Power of Court

Contempt of Courts Act gives power to Court to punish anyone who does its contempt. This concept / law developed in Britain, spread through colonialism to protect the authority and legitimacy of Court power to punish for contempt provided to Judiciary. Our constitution makers also for the same reasons provided contempt power to our higher judiciary. There was no statutory law of contempt till 1926. Indian courts followed the English Common Law. In 1926, the government enacted the Contempt of Courts Act XII of 1926, whereby the High Courts were given power to punish for contempt of courts "subordinate" to them. This was repealed and substituted by the Contempt of Courts Act XXXII of 1952, which has been replaced by the Contempt of Courts Act, No. 20 of 1971.

Why we need a law in our society? Can we live without law? Imagine of a society where there is no law. Will it survive, If yes how? In such a society the powerful, rich dominant can get their rights and the poor, powerless, helpless will be right less; In such a situation there would be "survival of the fittest".

But, in a democratic society, in a democratic country like India law is made by the people, is of the people and for the people.

Can we say that law shows or follows volkgeist , the inner consciousness and spirit of people? Is it voice of people? Does it grow from the voice of people? Or is it an expression of the privileged and majoritorian class? As large no of Indians still have not heard of 'Constitution' and of 'Supreme Court'.

Purpose of Law
Law is a means to keep society in order, is required and necessary and useful for ordering the conduct of society. It is a yardstick and also a tool for social engineering to build as efficient a structure of society as possible . It is a means of social control, to satisfy social claims and demands. It provides remedy and justice to aggrieved. Law is a method for harmonizing conflicting interests. Law creates devices, machinery and means to reconcile conflicting interests. "Court" is machinery created by law to provide justice.

Process of Providing Justice
In this process if there are hundred victims and one offender it may be easy for court to decide. But if there are hundred offenders and one victim such a situation becomes a matter concern for Court and poses difficulty.

In a situation where by saying 'Yes' court does injustice to one party / class and by saying no does injustice with another party/ class. In such situations policy mostly adopted by court is that for the interest of larger section of society interest of smaller section/ class can suffer or be sacrificed.

Chances of injustice for minor class/ group are very high in such cases and so the chances of protest. Protest is done only when there is injustice done to an individual or a class. If injustice is done to one class or if there is truncation of rights of a class, the Judgment of court faces criticism. The judgment of Supreme Court is final and binding. Can anyone comment on it can anyone say that it is wrong?

Law and its machinery i.e Court are there to provide justice.
Some of the questions to be considered are what happens when in such a situation one protests with strong criticism and outspoken comment? If the court is unjust to a party and final what remedy is left with aggrieved? True allegations on Court or Judge whether lowers the dignity?

Article 19 (1)(a) of Indian Constitution provides for freedom of speech and expression as fundamental right. Article19(2) provides for reasonable restriction and contempt of court is expressly mentioned as reasonable restriction in our constitution. The question now arises is Why Contempt of Courts Act put reasonable restrictions. Answer to this may be that it is a statutory restriction and also expressly given in our constitution.

Courts are staffed by Judges who are human beings with all the frailties that a human being can possess. So they can commit mistakes or do errors. If judge strictly follows the law and delivers Judgment with the technical law, then no now can say anything to a Judge/ court though they can criticize law. But if Judge has discretion as per the circumstances of the case, he makes law and somebody must evaluate his law making. Media which plays a significant role in publicizing the decisions and discourse of the courts, must have the right to criticize the decisions of the courts form the standpoint of policy and fundamental Constitutional values. Such Public criticism can play a very important role in making the judges accountable. However, such criticism is constrained by the law of contempt of Court.

The Contempt of Courts Act, 1971
Definition
Under Indian law, "contempt of court" has been divided into two categories: civil contempt and criminal contempt.
Civil contempt means "willful disobedience to any judgment, decree, direction, order, writ, or other process of a Court, or willful breach of an undertaking given to a Court" (section 2.b).

Section 2.c says that "Criminal Contempt" means the publication (whether by words, spoken or written, or by signs, or by visible representation, or otherwise) of any matter or the doing of any other act whatsoever which
i. Scandalizes or tends to scandalize, or lowers or tends to lower or tends to lower the authority of, any court, or
ii. Prejudices, or interferes or tends to interfere with, the due course of any judicial proceeding: or
iii. Interferes or tends to interfere with, or obstructs or tends to obstruct, the administration of justice in any other manner."

Action of scandalizing the authority of the court has been regarded as an "obstruction" of public justice whereby the authority of the court is undermined. All the three clauses of the definition were held to justify the contempt in terms of obstruction of or interference with the administration of justice.

Restraints
Law of Contempt imposes three types of restraints:
1. Restrictions on writings or speeches affecting matters pending in the court (subjudice)
2. Punishment for defiance of Court Orders
3. Punishment for Scandalous attacks on judges or the Court.

Subjudice matter: The Supreme courts ask the parties of litigations to refrain from speaking to the media or publishing articles on pending matters. In issues involving different aspects of people's life, judicial process is used as one of the tools for protecting the people's right. Public advocacy and political mobilization cannot be excluded just because recourse to judicial process has been taken. To expect that a person who chooses to invoke the judicial process must eschew public advocacy is to make the judicial process rather too socially expensive remedy. Whether a common citizen or Press untrained in law has a right to speak anything against or comment upon the Judgment or courts or attitude of court or of Judges.

Defiance of Court Order: when an order of court is disobeyed, the power to punish for contempt is necessary to maintain the dignity of the court If people can get away with defiance of the orders of the court, the court will lose respect and will be further disobeyed. Any disobedience that goes unpunished can waken the authority of the court and affects its legitimacy. Courts only source of power is the feeling among the people that they are bound by it. Power of court does not lie in the actual punishment that it imposes. But, in the feeling among people that they have an obligation to obey the court.

Attacks on Judges/ court: It is one thing to criticize the decisions of the court and quite another to criticize the Judges. It seems the court is now rather too sensitive to criticism of the Judges. There are no of contradictions in the law of contempt
i. There is no defence of the truth in a contempt case as is available in defamation case.
ii. Law of contempt holds even the media liable for reporting the contempt committed by another person

It is considerable that if it is medias duty to give information to people and such right to give information is concomitant of the right to freedom of the press, then why should it be guilty of contempt merely because it reports the contempt committed by another person.

The law that truth is no defence is excessive restriction on the freedom of speech and expression. Similarly, the law that media is also liable is on the one hand restriction on peoples right to information and on the other hand excessive restriction on media's right to give information.

Public views are considerable
No Law is perfect forever. Law has a scope for development and this is evident from the fact that law is amended many times, that the Supreme Court had overruled its own Judgment, issued guidelines many times. New Acts are passed from time to time by Parliament and the basis for all this is change of circumstances, realization and recognition of a cause/ new cause and failure of existing law. For instance law developed itself from the narrow lanes of 'locus standi' to the open fields of Public Interest Litigation.

Justice R.P Sethi, said in In re: Arundhati Roy "the law of Contempt has been enacted to secure public respect and confidence in the Judicial process. If such confidence is shaken or broken, the confidence of the common man in the institution of judiciary and democratic set up is likely to be eroded which, if not checked, is sure to be disastrous for the society itself".

The public protest springs up due to the pressure of injustice done to the public. It is a volcanic eruption which when occurs appears to be disastrous but reveals the truth, the real cause for dissatisfaction in the society and many unknown realities for social change.

Every person has a fundamental right of free speech and expression. Public views are considerable and is the basis and very foundation of democractic system. It is relevant as it reveals ground realities and truths regarding loopholes in good governance.

Legal Dimensions of Information Technology in the Millennium and issues of copyright

Today we are in the 21st century and things are changing for India. With the rapid growth of trade and industry in the era of globalization, liberalization, increasing use of internet, e-commerce and convergence of technologies have opened new vistas of opportunities for the people of India. The information and communication revolution is taking place all over the world and it has left the common man bewildered to even comprehend what is happening. The social, economic, political, cultural and educational system is undergoing changes on an unprecedented scale. It is making the life of an ordinary man difficult as he is unable to keep pace with the changing time and especially with regard to matters pertaining to knowledge sector.

Today technology is evolving fast as result of which the computers have found place in every home, every office and in all important departments. With the touch of a finger the whole world of knowledge, information is available just like magical lamp of Allauddin where an individual would get any information which one desires. A person living in India can communicate with a person in U.S.A. or Australia thousands of miles away. This is done in Cyberspace.

The advancement of science and technology has made a tremendous impact and change almost in all walks of life. The paper highlights the impact of information technology on library science. The libraries are considered to be storehouse of knowledge and information which is acquired with the help of books. But now with the help of virtual world the scenario has changed. With the easy accessibility to information and knowledge the students of library science will have to equip themselves with information technology and they will be required to learn the cyber language. They will also have to be acquainted with the computer security system. As potential users of information technology it will be imperative for library science professional to prepare themselves to handle the new and exciting world of cyberspace.

Cyberspace is a world of virtual reality. It has netizens and not citizens. Cyber world is not like physical world. The laws of physical world are different and they cannot be applied to Cyberspace. Physical laws have limitations and are defined. But laws of Cyber space are dynamic, undefined and limitless and they have to keep pace with technological advancements.

Cyberspace is a space where entry is not bound by geographical boundaries. Today a person sitting in the Chennai can access the information through Internet anywhere in the world. In the light of this librarians and information scientist should know about:--

1) The right to information and right to freedom of speech and expression,
2) Crimes related to internet, and
3) Intellectual property rights.

The Indian people are governed by the Constitution of India which gives the fundamental rights to the people. The Constitution of India does not specifically guarantee the right to information, but since long it has been recognized by our Supreme Court as fundamental right necessary for democratic functioning of our country. Our Supreme Court has specifically recognized the right to information as an integral part of the right to freedom of speech and expression guaranteed under Article 19(1) (a) of constitution and it can also be read within the purview of Article 21. The right to information is not an absolute right some information can be held back where giving of the information would harm the interests which need to be protected.

Article 19(1) (a) gives the right of freedom of speech and expression including the freedom of press to the citizens of India and the same article 19 sub clause (2) gives the reasonable restrictions which can be imposed by the government on the grounds of sovereignty and integrity of India, security of state, friendly relations with foreign states, public order, decency or morality, or in relation to contempt of court, defamation or incitement to an offence. But today the information which is available on the internet, the access is unlimited and person is free to get the information which under the law is prohibited. To give an example the viewing of pornographic and obscene material or any matter which affect the unity and integrity of the nation can be accessed by the people easily. The question to be answered here is "what happens to the reasonable restrictions given in article 19(2)? What control does the government have to restrict the right to information? These are questions which will have to be considered and determined by the government as well as the people of India while making laws for cyber space.

The advent of technology has brought with it unknown dangers and threats and in the hands of unscrupulous people it could mean a weapon mightier than any other weapon known to mankind so far. Internet crimes can be committed with considerable ease against anyone in the world from any part of the world and even from within the comfort of ones home. There is likelihood for more crimes to be committed in future in India.

Anonymity makes Internet a preferred weapon of choice for committing crimes. Technological perfection makes it very easy for these crimes to be committed. India has adopted a legislation to facilitate and safeguard electronic transactions and computer related crimes and it is the Information Technology Act 2000 which is applicable to the users of technology. This law is based on the Model Law on Electronic Commerce prepared by the United Nations Commission on International Trade Law (UNCITRAL) which was adopted by the UN General Assembly on 30th January 1997. The aims and objectives of the Act include enabling or facilitating the use of electronic commerce and providing equal treatments to users of paper-based documentation and to users of computer-based information. It is to promote efficient delivery of government services by means of reliable electronic records. It also covers some computer related crimes and contravention which are as follows:-

„« tempering with computer source documents (section 65 which provides for punishment with imprisonment upto 3 years and fine extend upto 2 lakh)
„« Hacking with computer system (section 66 under which punishment is imprisonment upto 3 years, fine which extend upto Rs. 2 lakh)
„« Publishing of information which is obscene in electronic form (section 67 which provides for punishment of imprisonment {first conviction- which extend upto five years, fine extend upto Rs. 1 lakh}, {imprisonment second or subsequent conviction extend upto 10 years, fine extend upto Rs 2 lakh}.
„« Securing access to protected system notified by the government (section 70 punishment of imprisonment extend upto 10 years, and fine but it is silent about the fine which is to be imposed.
„« Breach of confidentiality and privacy by disclosing any electronic information to any other person without consent of the concerned person (section 72 which provides punishment of imprisonment upto 2 years, fine upto 1 lakh.)

In addition to the crimes given above there are few more crimes which are given below:-
„« (1) Unauthorized reproduction
„« (2) Software piracy
„« (3) Miscellaneous computer crimes
„« (4) Theft of data and information

The next important aspect to be considered here is the issue of intellectual property rights. An intellectual property right is a general term which covers copyright, patents, registered designs. The intellectual property rights provide an incentive for the creation of an investment of a new work (literary work, music, film, print media, software performances etc.) and their exploitation. Copyright protects original work of authorship that is in tangible (definite) form of expression. The work coming under the purview of copyright includes the following categories:-

(1). Literary works.
(2). Musical works.
(3). Dramatic works
(4). Choreographic works
(5). Pictorial, graphic, sculptural works
(6). Motion picture and other audiovisual works
(7). Sound recording and architectural works

The categories given above should be viewed broadly. To give an example computer programmes and most compilation may be registered as literary works. Maps and architectural plans may be registered as pictorial graphics and sculptural works.

The main objective of the copyright law is to promote the access and the use of information and for protecting the works from the infringement and for encouraging the author in pursuit of knowledge. The technological developments, the increasing number of electronic publication and digital libraries pose challenge to the right holder as well as law enforcing agencies.

Section 14 of the Indian Copyright Act, 1957 enumerates certain activities which are exclusive rights for the author of the work who can do or authorize someone to do all or a part of those activities. These, when done by unauthorized person or without the explicit permission of the copyright holders, amounts to a breach or infringement of copyright. These include:-

1) To reproduce the work in any material form including the storing of it in any medium by electronic means
2) To perform the work in or communicate to public
3) To issue the copies of (publish) the work to public not being in circulation.
4) To produce and publish any translation of the work
5) To make any translation or adaptation of the work.
6) To make any cinematography film, or a sound recording and
7) To do in relation to a translation or adaptation of the work any of the above
specified acts.

In the case of computer programmes in addition to what is given above the Act also mean to do or authorize:-
8) To sell or give on hire or offer for sale or hire any copy of the computer program regardless of whether such copy has been sold or given on hire on earlier occasions.

There are certain exceptions to copyright infringement. In section 52 of the Indian Copyright Act enumerate 5 categories of acts which when performed do not fall under the infringement of the copyright, they are:-
„« Reproduction in the course of fair dealing that is, for private use, research, criticism, review, reporting, broadcast, etc.
„« Reproduction for educational purposes
„« Reproduction for official purposes that is for judicial, legislative, etc.
„« Reproduction where there is remote relation to the original which does not cause and loss to the copyright holder.
„« Reproduction for private entertainment

There is no such thing as an international copyright that will automatically protect an author's writings throughout the entire world. Protection against unauthorized use in a particular country depends, basically, on the national laws of that country. However, most countries do offer protection to foreign works under certain conditions and these conditions have been greatly simplified by International Copyright Treaties and Conventions.

In the words of Vakul Sharma, copyright infringement is the courtesy of technology. According to him: "Technology support Copycat- you brows, you select and you copy. Copying has become a dynamic 24/7 activity. The law has to differentiate between memory and copying. Computers have been programmed in such way that they save data automatically, whereas copying is a command, which is deliberate and intentional and may infringe a copyright law"

There is word of caution for the young users of information technology. Do not adopt the method of cut, copy and paste.

Technology is boon for mankind and new developments are taking place everyday. Computer is at the core of information technology activities. These activities are no doubt is regulated by law but the prevailing laws are not sufficient to control the unscrupulous activities. If this technology is used for negative things in life it can prove to be disastrous and if it is used for enriching ones personality, for getting information and for gaining knowledge it will benefit the humanity.

Ya imam e zaman aap kyoon hain..

Violence Against Women: Issue Of Honor Killing

Definition

Honor crimes are acts of violence, usually murder, mostly committed by male family members predominantly against female [relatives] , who are perceived to have brought dishonor upon the family. A woman can be targeted by individuals within her family for a variety of reasons, including: refusing to enter into an arranged marriage, being the victim of a sexual assault, seeking a divorce — even from an abusive husband, or (allegedly) committing adultery .The mere perception that a woman has behaved in a specific way to "dishonor" her family, is sufficient to trigger an attack.[1]

For example, honor killings can sometimes target those who choose boyfriends, lovers or spouses outside of their family's ethnic and/or religious community. Some women who adopt the customs (or religion) of an outside group, may also be more likely to be victims. Furthermore, in certain cultures a raped single woman will garner no bride price if she marries, and thus be considered "worthless" to the family. There is some evidence that homosexuality can also be grounds for honor killing by relatives. Several cases have been suspected but not confirmed. There is also a documented case of a gay Jordanian man who was shot (but not fatally) by his brother.

Many hold the practice to be self-contradictory, since an honor killing is sometimes justified by its participants or supporters, as an attempt to uphold the morals of a religion or a code, which at the same time generally forbids killing as morally wrong.

Honor Suicides
Honor Suicides occur when, in an effort to avoid legal penalties for killing, a woman is ordered or pressured into killing herself. This phenomenon appears to be a relatively recent development. A special envoy for the United Nations named Yakin Erturk, who was sent to Turkey to investigate suspicious suicides, was quoted by the New York Times as saying that some suicides appeared to be "honor killings disguised as a suicide or an accident."

History: Honour Killing
Based on proof
In the Valley of Mexico from 150 BCE - 1521 CE, the punishment for female adultery was death by stoning or strangulation, but only after the husband could prove the offence. According to interpretations of Leviticus and Deuteronomy, the Halakha (Jewish law) punishes certain sexual misconduct for both men and women, with capital punishment (also through stoning) as approved by a court.

Honor killings, generally considered premeditated, are typically held to be distinct from Crimes of passion, which occur throughout the world. Crimes of passion often have special status under the law. For instance, until 1975, the French Penal Code commuted the sentence of a husband who killed his wife after finding her in the act of committing adultery; this law passed into the legal frameworks of the many nations who based their modern legal codes on the Napoleonic Code. Thus, Crimes of passion are different from honor killings, in the sense that they are spontaneous acts that aren't planned. Furthermore, many honor killings (along with some Crimes of passion) are based on sheer suspicion as opposed to (what appears to be) factual proof, in relation to the idea that an individual has committed or been involved in an "undesirable act", in the mind of the perpetrator(s).

Honor killing in national legal codes
According to the report of the Special Rapporteur submitted to the 58th session of the United Nations Commission on Human Rights (2002) concerning cultural practices in the family that reflect violence against women:

The Special Rapporteur indicated that there had been contradictory decisions with regard to the honor defence in Brazil, and that legislative provisions allowing for partial or complete defence in that context could be found in the penal codes of Argentina, Bangladesh, Ecuador, Egypt, Guatemala, Iran, Israel, Jordan, Lebanon, Peru, Syria, Turkey, Venezuela and the Palestinian National Authority.

Some of these, including those of Turkey, have since been modified.

Countries where the law can be interpreted to allow men to kill female relatives in a premeditated effort as well as for crimes of passions, in flagrante delicto in the act of committing adultery, include:

Jordan: Part of article 340 of the Penal Code states that "he who discovers his wife or one of his female relatives committing adultery and kills, wounds, or injures one of them, is exempted from any penalty." This has twice been put forward for cancellation by the government, but was retained by the Lower House of the Parliament.

Countries that allow men to kill female relatives in flagrante delicto (but without premeditation) include:

Syria: Article 548 states that "He who catches his wife or one of his ascendants, descendants or sister committing adultery (flagrante delicto) or illegitimate sexual acts with another and he killed or injured one or both of them benefits from an exemption of penalty."

Countries that allow husbands to kill only their wives in flagrante delicto (based upon the Napoleonic code) include:
Morocco: Article 418 of the Penal Code states "Murder, injury and beating are excusable if they are committed by a husband on his wife as well as the accomplice at the moment in which he surprises them in the act of adultery."

Haiti: Article 269 of the Penal Code states that "in the case of adultery as provided for in Article 284, the murder by a husband of his wife and/or her partner, immediately upon discovering them in flagrante delicto in the conjugal abode, is to be pardoned."

Turkey: Recently Turkey changed its laws concerning honor killings. Persons found guilty of this crime are sentenced to life in prison.

In two Latin American countries: Similar laws were struck down over the past two decades: according to human rights lawyer Julie Mertus "in Brazil, until 1991 wife killings were considered to be noncriminal 'honor killings'; in just one year, nearly eight hundred husbands killed their wives. Similarly, in Colombia, until 1980, a husband legally could kill his wife for committing adultery."

Countries where honor killing is not legal but is frequently ignored in practice include:

Pakistan: Honor killings are known as Karo Kari (Urdu: ˜ÇÑæ˜ÇÑی ). The practice is supposed to be prosecuted under ordinary murder, but in practice police and prosecutors often ignore it. Often a man must simply claim the killing was for his honor and he will go free. Nilofer Bakhtiar, advisor to Prime Minister Shaukat Aziz, stated that in 2003, as many as 1, 261 women were murdered in honor killings. On December 08, 2004, under international and domestic pressure, Pakistan enacted a law that made honor killings punishable by a prison term of seven years, or by the death penalty in the most extreme cases. Women's rights organizations were, however, wary of this law as it stops short of outlawing the practice of allowing killers to buy their freedom by paying compensation to the victim's relatives. Women's rights groups claimed that in most cases it is the victim's immediate relatives who are the killers, so inherently the new law is just eyewash. It did not alter the provisions whereby the accused could negotiate pardon with the victim's family under the so-called Islamic provisions. In March 2005 the Pakistani government allied with Islamists to reject a bill which sought to strengthen the law against the practice of "honour killing". The parliament rejected the bill by a majority vote, declaring it to be un-Islamic.

Incident in Pakistan:- Ghazala was set on fire by her brother in Joharabad, Punjab province, on 6 January 1999. According to reports, she was murdered because her family suspected she was having an 'illicit' relationship with a neighbour. Her burned and naked body reportedly lay unattended on the street for two hours as nobody wanted to have anything to do with it. Ghazala was burned to death in the name of honor. Hundreds of other women and girls suffer a similar fate every year amid general public support and little or no action by the authorities. In fact, there is every sign that the number of honor killings is on the rise as the perception of what constitutes honor -- and what damages it -- widens, and as more murders take on the guise of honor killings on the correct assumption that they are rarely punished.

Indian Scenario
“Honor-killings", which are widespread in some of the economically advanced States, is an example. Perpetrated under the garb of saving the "honor" of the community, caste or family, such incidents occur often as the State governments are not keen to take action. The acts of violence include public lynching of couples, murder of either the man or the woman concerned, murder made to appear as suicide, public beatings, humiliation, blackening of the face, forcing couples or their families to eat excreta or drink urine, forced incarceration, social boycotts and the levying of fines.

The largest number of cases was found to have occurred in Punjab, Haryana and Uttar Pradesh - most of the incidents reported at the convention took place in these three States. One reason for the increased visibility of such crimes is the trend of more and more girls joining educational institutions, meeting others from different backgrounds and castes and establishing relationships beyond the confines of caste and community. Such individuals, both boys and girls, are being targeted so that none dares to breach the barriers of castes and communities. Significantly, in the majority of cases it is the economically and socially dominant castes that organize, instigate and abet such acts of retribution.

In Muzaffarnagar district in western Uttar Pradesh, at least 13 honor killings occurred within nine months in 2003. In 2002, while 10 such killings were reported, 35 couples were declared missing. It was estimates that Haryana and Punjab alone account for 10 per cent of all honor killings in the country. It is not surprising that no such category of crime exists in government records. In fact, there is refusal even to recognise this phenomenon. Data for such incidents are seldom available and they would mostly be classified under the category of general crimes. Moreover, most of such cases go unreported and, even when reported, often first information reports [2] are not filed and post-mortems are not conducted.

Caste panchayats have come to play an increasingly important role in Haryana and elsewhere, especially in situations where political patronage also exists. Central to the theme of honor and violence is the subordinate position of girls and women in all castes and communities. A woman's chastity is the "honor" of the community and she has no sovereign right over her body at any point of her life. The retribution is particularly swift and brutal if she crosses caste and class barriers to choose a lower-caste man as her partner.

Case Study
Location: Ludhiana
Date: 12 January 2005

Ø Four of the five accused, including a retired police Sub-Inspector, in the shocking honour killing of a couple case have confessed to hiring professional killers for the job. They stated that the main accused, Amrik Singh, who was in Australia, had hatched the entire conspiracy and knew the killers, the Sadar police claimed.

Ø The police has also initiated proceedings for deporting the main accused, Amrik Singh, father of one of the victims Amandeep Kaur, from Australia while hoping that he would return on his own and join investigations.

Ø The city police has claimed of taking the help of the Australian Embassy for the purpose even as a lot of loopholes exist in the police investigations conducted so far. The police has not been able to furnish any concrete evidence against the accused other than the complaint of the boy’s family that the relatives of Amandeep Kaur had been threatening the couple for the inter-caste marriage.

Ø The four accused are the killed woman’s maternal grandfather B. S. Randhawa (aged over 70), a retired Development Officer with the LIC, and three uncles (fufars) — one of them a former Punjab Police Sub-Inspector Kulwant Singh, serving Head Constable with Amritsar police Tejinder Singh and Sukhdev Singh.

Ø Addressing a press conference SHO Sadar Sandeep Sharma claimed that the four accused had confessed before the police that the couple — wood trader Harpreet Singh and his wife Amandeep Kaur, a BDS student — was ‘punished’ for marrying outside their castes.

Ø They said Amandeep Kaur had lowered their image in the community by marrying outside the caste. They stated to the police that it took them nearly a year to carry out murders as they had been waiting for an opportune time.

Ø The revelation that two cops, one retired and one serving, were involved in the case has again put the Punjab Police in bad light. Four years ago, the infamous Jassi murder case hatched on similar caste lines also had a serving cop in the list of the accused.

Ø The case now hinges on the return of Amrik Singh from Australia with the arrested persons putting all blame on him and the city police convinced with the statements of the accused as well as the complainants without securing any evidence.

Ø SHO Sandeep Sharma said Kulwant Singh and Sukhdev Singh were arrested from Amritsar while Tejinder Singh and B. S. Randhawa were arrested from the local railway station here when they were trying to flee the city.

Ø The SHO said that the accused had threatened the couple and the boy’s relatives during their ring ceremony in Amritsar and later again at their marriage ceremony in Mariot Hotel in Ludhiana. The couple had got married in a city court about 11 months ago.

Ø After that Amandeep Kaur’s relatives had invited them to their homes and claimed they had accepted the couple. They had then organized formal ring and marriage ceremonies.

Ø Interestingly, the relatives of the accused had been claiming that the police had raided their houses and picked them up and kept them in illegal custody.

Ø The prime accused, Amrik Singh, had pleaded innocence in the case and counter alleged that some relatives of Harpreet Singh were involved in the murder. When asked if the police would register a case against them too as Amrik Singh has also made a statement like the complainants, the SHO said the police would investigate the charges.

Ø Meanwhile, the Additional Chief Judicial Magistrate, Mr G.C. Garg, remanded four accused of infamous couple murder case in one-day police remand.

Ø Amandeep Kaur and her husband. Hardeep Singh, was murdered mercilessly, allegedly by the family members of woman by hatching a conspiracy.

Ø The prosecution sought the police remand for further investigation. The judge remanded the accused.

Conclusion
From the above case it is very clear that not only Islamic society but, different societies in India are increasingly facing the problem of honor killing, to which the state authorities like panchayats and police are a party. Thus in such an ailing situation it is very important that such incidents are taken care of properly by the state and also the society. Such crimes can only be eradicated by:

1. Putting very serious penal sanctions.
2. Active police and panchayat body; as these crimes are mainly confined to rural or village areas.
3. Imparting education to the village people at large.
4.Active participation of the NGO’s[3] relating to women empowerment.
5. Judiciary must be positive on such cases.

Research from around the world point to the fact that violence against women can only be combated if there is a healthy partnership between women’s groups and the state apparatus. While women’s groups must protect their independence, on certain issues they have to work effectively with the criminal justice system, joining forces to protect the rights of women victims. Moreover, law is an important tool but it is one of the many strategies available to us. While fighting for justice through the legal system, we should also try and put in place education policies, health strategies and community level programmes that promote equality between men and women and teach non violent methods of resolving conflict. A multipronged approach to violence against women will result in far reaching changes, transforming attitudes and practices so that men and women can live in equality and dignity.

Bibliography
Books and Articles:
"Jordan Parliament Supports Impunity for Honor Killing," Washington, DC: Human Rights Watch Press Release, January 2000
Burned Alive: A Victim of the Law of Men Alleged first-person account of a victim of an attempted honor killing (ISBN 0-446-53346-7) The work is based on a repressed memory report and its authenticity has been questioned.
The Varied Contours of Violence Against Women in South Asia; Coomaraswamy, Radhika.

Vicarious Liability of Employers in Sexual torts committed by employees

"If you want to be safe, better don't exist!!"- The only solution provided to our womenfolk. This represents a very dismal state of affairs. In a country which considers a female baby being born in the family as a bane to its economic position, harassing the woman anywhere is not a surprising phenomenon. Owing to her "incapacity" to fight out openly, thanks to the family prestige, she has been taken for granted in all the situations she faces. Law plays a very mild role in changing the position of the status of women. A number of Legislations have been laid down with a fond hope of preventing the harassment of women in general and in workplaces, specifically. The effectiveness of each of these Legislations is something which has to be analyzed, in order to get a clear picture of the oblivious reality.

Sexual Harassment At Workplaces:
Unlike the women of ancient time, the present day woman is almost on par with the men folk, save the dignity and status she has to be given, struggling to establish her position as a separate entity in the society. However, she is failed to be accorded with the respect she is entitled to claim, as a human being.

Non Governmental Organizations play a pivotal role in coming to the rescue of women subjected to harassment at the workplaces by the superiors or her co workers. A classic example for such situation is VISHAKA-VS- STATE OF RAJASTHAN where, on behalf of a woman employee who was subjected to sexual abuse by her superior officer, a NGO (Vishaka) filed a petition to draw the attention of the Court, as to the atrocities committed on the women folk in workplaces. This case was a landmark decision towards the self empowerment of women. For the first time, Courts have decided based on an international instrument, when there was no law specifically in force in India, for matters relating to sexual harassment. The move was based on India's ratification of the international instrument, CONVENTION ON THE ELIMINATION OF ALL FORMS OF DISCRIMINATION AGAINST WOMEN (CEDAW).

Sexual Harassment:
The Court, in Vishaka's case has ventured into enumerating the possible acts that would attract penal provisions, as follows:
i) Physical contacts and advances;
ii) A demand or request for sexual favours;
iii) Sexually coloured remarks;
iv) Showing pornography;
v) Any other unwelcome physical, verbal or verbal conduct of sexual nature.

Employer's Responsibilities:
After this case, it became mandatory for all employers to follow the guidelines laid down in it; however, there were no measures for breach of such guidelines. The employer has a primary duty to see that, sexual harassment is not inflicted upon the women employees in any form whatsoever. He has a statutory duty that is cast upon him to take measures to prevent such occurrences and penal actions have also been stipulated to be inflicted on the harasser. The victims should be allowed to get a transfer so that they are not victimized further.

It has also been stipulated that a complaint mechanism should be provided compulsorily by the employer, with the committee free to handle complaints regarding sexual harassment, headed by a woman, facilitating free access to the women to voice out their grievances.

However, there is nothing to impute liability on the employer for the sexual torts committed by the employees or the supervisors, under the Indian Law. However, employers cannot be immune from such liability and allowed to go scot-free on the ground of not being aware of such lowly occurrences at their workplaces.

Whereas, the Laws in the United States permit a woman employee to implead an employer as a party in a case of sexual harassment by a supervisor or a colleague , even when the woman does not suffer any adverse employment action.

To impute a vicarious liability on the employer, the conditions to be fulfilled necessarily are that: i) there should be an employer employee relationship and ii) the alleged act of sexual harassment should have occurred in the course of employment.

The problem in this case is that the employer always tries to evade responsibility in such cases of vicarious liability and it inevitably leads to the preference of independent contractors. The quintessential issue is whether employers have to necessarily be made liable for the personal acts committed by the employees?

A very common defense taken by the employer would obviously be that they cannot be made liable for sexual harassment committed by their employees. The principle of agency is to be comprehended. A careful analysis would probably lead to the conclusion that, a business must bear the costs, as well as retain the benefits.

Position In India:
The Indian Law has not yet dealt with vicarious "liability" of employers. It is merely a duty that is cast upon the employer. With the number of women entering the fray of employment, including manual jobs, it creates a lot of possibilities for all kinds of misbehavior in the workplaces. It therefore places an onus on the employer to not only take measures to prohibit such acts, but assume moral and ultimate responsibility in cases where such denial of sexual favours has resulted in tangible employment action.

A tangible employment action is a means by which a supervisor brings official power of enterprise to bear on subordinates, the common possibilities being deprived of promotions entitled to, refraining from giving a salary hike when the woman is in reality, owing to her performance in the job, is entitled to. Where such tangible employment actions culminate, it obviously becomes the duty of the employer to own up the cause for it, though he might not necessarily be a party to it.

The primary reason attributable to it could probably be that, the agent (or the supervisor in this case) is usually considered an alter-ego of the employer. The acts committed by an employee in relation to a personal enmity, if affecting the terms of employment, naturally, by principles of agency, attracts vicarious liability of the employer.

Inevitably, where there is a rule, there are definitely exceptions to it. If the employer wants to evade liability, he could as well proceed to blame the victim herself, on the basis that, she had not availed of any of the preventive measures provided by the employer and that it had happened in spite of all reasonable care taken by the employer to prevent such mishap. These defenses are available to the employer for.
i) cases which have culminated into a tangible employment action
ii) not evading liability but only to limit the amount of damages payable to the victim of sexual harassment.

The liability of the employer in these cases of harassment is not for the physical acts committed on the victim, but the psychological trauma she is made to undergo, and the social stigma that attaches to a woman in case she is victimized for a sexual harassment. The employer can steer clear of his liability only when he has shown to the complete satisfaction of the Court that he has taken all reasonable and probable steps in regard to preventing the commission of such offence.The common presumption in cases which proceed to implead the employer as a necessary party to the claim for damages in cases of sexual harassment is that, a supervisor could inflict a tangible employment action on an employee only because of the authority delegated by the principal employer.

Consequences Of Failure On The Part Of Employer To Take Necessary Steps:
The guidelines laid down in vishaka's case were incorporated into the Sexual harassment of women at their workplace (Prevention and Punishment) Bill introduced in 2005. Yet to be ratified, they still stand in the form of mere directives and have not acquired a mandatory nature.

Apart from the legal aspects of failure to implement, the other possible consequences that could follow such indecent behavior in a workplace are:
i) In a competitive world, where women are now an integral part, such harassment creates a hostile work environment, resulting in creation of an unpleasant relation with the colleagues, which in turn spoils the decorum of the organization.
ii) The employee stands the risk of facing firing from the job, apart from the social stigma she will be forced to carry, if the act of such harassment is made public.
iii) She is subject to a trauma, which prevents her from concentrating on her job performance.
iv) A hostile work environment also goes to encompass a very poor rapport among the employer, employee and the supervisor.

It is high time for the employer to realize his moral responsibility and create a peaceful and cordial atmosphere in the organization he heads. It is the need of the hour to regulate good organizational behavior in the institution.

The employer owes a duty to create awareness to the persons in the supervisory cadre as to their responsibilities regarding maintaining decorum in the workplace. A progressive step towards preventing liabilities for acts of some third party would be to make sure that they are not permitted to commit them.

The employers as well as the supervisors should realize and recognize women as an integral part of the organization and the society as well, and not as an object of ridicule and subject of exploitation. It is not an overnight change that could be brought about, but proper awareness about the aftermath of such intrusive acts should be revealed to the employees.

The Indian Penal Code in sections 354 and 509 lays down the penalty a man would be subject to if he does any act outraging the modesty of a woman, knowing it to be an offensive act and as one intruding into her privacy, shall be subject to imprisonment of either kind which may extend to two years and one year respectively.

However, such provisions are not sufficient to safeguard the interests of working women, partly due to the fact that, the woman herself does not want such acts inflicted upon her to be revealed, thanks to the age old mentality of the society, which looks down upon a victim of a sexual harassment.

With an increase in the number of women taking out on BPOs( Business Process Outsourcing) there has obviously been a marked rise in the number of sexual torts committed upon those women, who, though are treated on par with the men when it comes to the pay scale, are made to work even during night shifts and this makes their position precariously vulnerable. Only the employers in such cases are to be blamed. The excuse of they not having any control over such circumstances should stoutly and blatantly be denied.

Can The Employer Be Held Liable Vicariously?
The act of harassment, if occurring inside the premises, and the authority conferred by the employer encourages or enhances the chances of the supervisor to commit such unruly behavior on the woman, it should definitely be treated as one occurring within the scope of employment, thereby attracting the prime principle of law of agency – vicarious liability of the employer.

A major problem is that the employer is also mostly behind the harasser and throw as much pressure on the harassed. The sexual harassment should be treated as a major misconduct and heavy sanctions should be imposed on the harasser. This is the common presumption that the harasser is aided by the employer himself, and for which a lot of factors could be adduced. The employer cannot manifest himself in each and every place in order to check harassment, but this is not an excuse for him to evade liability. He definitely has all means to make sure that such behavior does not occur within the premises.

When the harasser has an immediate control over the woman employee and opportunities are available where the woman has by all possible means cannot evade, but to follow his orders, there is every chance for a mishap to happen owing to her physical weaknesses. The employer in all such cases can relieve her by giving the victim or the harasser a transfer, as requested by the woman. Every one has a right to live with dignity, which are an integral part of life as enshrined u/A 21 of the Indian Constitution. Right to live with dignity is inclusive of right to be protected against sexual harassment Principles of morality also places a burden on the employer to take proper care to protect the woman from undergoing any sort of physical or mental trauma, merely on the basis of her sex. The liability of the employer could possible arise when there is a tangible employment action as mentioned above, which has caused some prejudice to the woman employee. Where it has occurred, the employer cannot, under the Federal Law raise the defense that the employee (victim) has failed to avail herself of the preventive measures provided by him.

A valid suggestion to the employer to prevent sexual harassment and thereby not incurring liability could be as follows:
"Do not let sexual harassment go on – first, you do not have to accept this illegal behavior; second, bad behavior tends to get worse and you may be exposing yourself and the others to danger; third, by allowing the behavior to continue your action may be interpreted by a Human Resources Department or a Judge and Jury as condoning the behavior."

The employer and all employees should realize the importance of treating a woman with dignity and according the respect she is, as an individual entity, entitled to, and to treat her on par with the male employees and not as an object of vengeance or a vent to their emotions. The Indian society still hoards its treasure of orthodox nature of treating a woman belonging only to the house hold. In spite of it, when a woman comes out of her threshold to earn, that should be appreciated and she should not be victimized for it.

In the year 2003 , a landmark judgment was given by the Delhi High Court that an employee who assassinated the character of a woman employee was sentenced to one year imprisonment and a fine of Rs. 1000. The Judge aptly remarked, "The assassination of a character of a woman is worse than her assassination. A person at least dies in peace, but a woman whose character is assassinated has to die inch by inch. She has to face humiliation, pain and agony at every step which is worse than death."

A responsible employer will have to take up liability in case of harassment committed in the course of his employment. The legislations in India have not come forward to infuse liability on the employer for the acts of employees or the supervisors for their sexual torts committed by them. When the employer is prepared to take up vicarious liability in case of any other acts committed in the course of employment, sexual torts do not in reality differ form the others and the reason to evade liability on grounds that they are of a more personal nature cannot be sustained, due to the fact that an employer, according to principles of agency, is liable immaterial of the nature of tort committed by the employee.

The question, however, arises as to the extent of liability. The employer, basing on the federal law principles, is liable to pay damages to the victim. The Indian Courts, in Vishaka's case merely places a duty to incorporate into the standing orders of the industry, position of the employee in case he commits a sexual tort. Penal provisions could also be mentioned in the Standing Orders. The enforcement of these guidelines, which are mandatory, is still very little. Unless a proper Legislation is laid down enunciating the core principles of maintaining decorum in the workplace, it is very difficult to curb the occurrence of such nature.

The employer could be liable only if the situation is so cordial as to enable the victim to report of the unpleasant event in her life at the workplace. The guidelines have taken a step in that direction to make sure that a complaints committee is instituted in all work places employing women, and the procedure is simple and proper remedies are to be taken in harassment cases. Where the nature of work is such that it might aggravate such atmosphere, the employer should take steps to see that women are not made to be a part of that work. Thus, the liability of an employer does not occur in all cases, unless it is proved to the satisfaction of the court that the harassment has been due to the negligence of the employer to take such steps or with the authority and consent of the employer.

Conclusion:
The problem of sexual harassment is a very sensitive issue and it is quintessential part of employment tactics to curb or at least to reduce the intensity of it. The employer 's liability is also an integral part of the object of preventing sexual harassment at workplaces, because of the fact that, unless the employer himself is fastened with the burden of being liable for the indecent acts of his employee, he will not take any vigilant action and not care at all to take preventive measures for the simple reason that all legislations, however strategically framed, will surely fail to achieve its result. Involvement of the employer in the anti-victimization activities of women, if absent, will defeat the very purpose of legislations. The woman too, on her part should not take it as a way to take vengeance on any co worker or the employer himself. Only if such liability is imposed on the employer, even in India, guidelines framed by the court will be effectively followed. Else, the supervisors could find the women an easy target for their illegal demand for sexual favors. The modern day woman is prepared to meet the lion at its den. So it has to be realized that the employer has every chance for being impleaded as a party in case of a sexual tort committed by the employees.

Unless a Legislation is framed to impose vicarious liability on the employer, any other step taken in this direction, placing a request on the employer to see to it that such acts do not occur in the workplace, will be of no avail. Most Human beings work on the principle that, unless a cue is given to them, they will not surge ahead. Similarly, unless and until an employer is imputed with a liability that, if a sexual tort takes place in his workplace, he will be liable vicariously, the employer will never care or bother about the seriousness of the issue. Unless and until legislation to this effect, of making the employers themselves liable for any sexual harassment committed in and during the course of employment, takes root into the industrial arena, all measures in "trying" to curb sexual harassment or protect women from being harassed will be of no avail. One basic respect that a woman should be accorded in her workplace is However she dresses, wherever she goes, yes means yes and no means no. The same had been emphasized in Vishaka's case as well, much to the contrary belief of most men in the world.

The words of Swami Vivekananda that, "Country and Nation which do not respect women have never become great nor will ever be in future." It should be borne in mind by the Indian employers that workplaces are an integral part of the country and it becomes the duty of every employer to make sure that the women employees are in a comfortable and cordial atmosphere in the workplace to ensure peaceful and progressive functioning.