About the Author
Prof. (Dr.) G. P. Tripathi
MATS Law School, Raipur
Life is surety of death. It is at mercy of death. Life starts with wake up in each day and ends with sleeps each night. Whether one would wake up is beyond one’s control. So end up each day as if that is the end and thank God when you get another day. Day is for action, might is for romance. No one can cut shart this natural phenomenon. Let us train our mind to finish up the day enjoying complete and in order so that your successor may pick it up from there. This is reality. Keep in view and criminality would appear less. It is well known that deviations would be there but no doubt, it would regulate a bit. When you once realized that time is short or there is no time, value of time is actually realized and available time is properly utilized. Crime is creation of empty mind, It is deviation. Rape is product of time and circumstances. Just come out of these. There would be no rape. For deviations, one cannot spoil those moments that are for romance. Romance is regulated by institutions of marriage and family.
Five basic truths that are mysterious to the people are[i]; Science of God, Jiva (constitutional position of living entities), Prakriti (material nature), time (Kal duration of existence of whole Universe or manifestation of Prakriti) and Karma (Activity). First three are eternal, permanent, non-changing; fourth is semi permanent and 5th is changing and temporary; creates results; pain or pleasure, (material nature). The material nature expresses in three modes qualities, all embodied souls are under the control of these three qualities (modes); goodness, passion and ignorance (Sat, Rajas and Tamas). All the three are in every living entity. It is matter of time (Kal) as to which prevails when. A crime is committed when ‘tamoguna’ (Passion) dominates. Men become ‘Rakshas’ (demon). Kal (time and place) plays vital role in what dominates when. ‘kal’ includes time, place and the circumstances of incident. Crimes against women are controlled and are producing time (kal).
‘Prakriti’ is inferior nature or inferior Prakriti like lower animals, creature or creepers and the superior Prakriti that includes living entity (human being). The meeting of prakriti (female) and ‘Purush’ (male) procreate, next generation. This meeting/mating is called sex relation. Ahaar (food) sleep, fear and sex are four actualities common to all, creatures, creepers, animal, beasts, insects and men. ‘Intellect’ (near ksheer vivekini) is peculiar gift only to human being; others do not have it. Animals have impulse not buddhi. Intellect controls ‘mind’ and ‘mind’ controls sense which are 10 in numbers 5 relate to Gyan (knowledge) and are called ‘Gyanendriya’ five relate to ‘Karma’ and are called ‘Karmendriya’[ii]. A conditioned ‘Jeev’ by nature multiplies in whatever ‘yoni’ that ‘Jeev’ is. To multiply, needs female’s cooperation. It is this that is identified as ‘family’ single family, extended family, joint family. Hindu Undivided family.
Basic knowledge is that one must know that ‘we’ are not this material body. It is materially contaminated; it is conditioned. Hence a false impression is created that is ‘ego’ i.e. ‘I’, ‘I ness’ ‘myness’. The human ‘body’ has a purpose that is ‘liberation’ of soul caged in it; self realisation’; mukti from re-birth cycle; soul merging in super soul; atma into ‘Parmatma’.
‘Marriage’ is very important connecting factor of regulated sex behaviour in actual social life; Live-in relations, same sex relations, gay relations, lesbianism, homosexuals, straight couple relations and friendships for fun like B.F., G.F., F.F., M.F., B.F.[iii], (friend for benefit) and F.C. (friend on call) are deviations of relationship in nature of marriage.
Eight kinds of marriage and twelve kinds of son[iv]: Marriage is sancro-sanct union of the two opposite sexes, it is union of two souls. It is union of two families, two sapindas, two sakulyas, two samanodaks, their agnets, cognates and collaterals. Our society was as such so systematical that wherever, any such union was by right or by wrong; cloak of this concept was used to cover it up to save the life of girl and the boy. Factum valet was made use of. These were of eight kinds: four approved and four disapproved. Approved forum included, Brahma, Daiva, Aarsa, Prajapatya. Four unapproved included; Asura, Gandharva, Rakshas and Pishach marriage. The order shows better to worst. First category: Sons are kinsmen and heirs. These are Aurasa(Begotten through legally wedded wife), patrikputra, kshetraja(Begotten through not legally wedded wife), Dattaka, (Adopted), Kritrim(appointed), gudhotpanna(secretly born, father not known) and apavindha (cast off or foundling). Second Category: Kinsmen only; not heirs. Kanina (born through maid servant), Sahodha (got in dowry brought by wife), Kriita (purchased), Paunarbhava (Begotten of wife married to the other), Swayamdatta (self-given) and Sraud (Sudra woman and Brahman).
Live in relation and live together relation. These are different, In live in relations, sharing of bed and board in two of opposite sex is involved. It is normally pre marriage decision making process and tends to result finally in marriage or bye-bye, In living together, sharing of bed is not involved, ‘home’ is shared, ‘health’ may be shared but ‘bed’ is not shared. Sex needs not to be. A widow-widower living together and sharing company, widow sister living with widower brother, widower father and widow daughter living together in same house; All these are arrangements to survive. Even senior citizen incapable of sex may live together tied by marital relations or even without it for survival.
Whether transgenders living together can be live in partners[v]: Deformities in organs of creation cannot be ground for denying civil night to few unfortunates. They can live together but this living together cannot be termed marriage: lest death of marriage as institution. Lesbianists, homosexuals, gays claim status and recognition of their living together as marriage. These claims would cause death of marriage as social institutions; though, birth of new concept of family is quite possible thereby. In this kind of family concept, company is more important than sex. Romance is there; contentment is enjoyed and even new way of procreation (Adoption) not through sex can also develop. Sex is not necessary when sex organ is absent or deficient but why others possible be denied? The concept of marriage can be reread as a relation for company and comfort.
Once deviation starts and alternative to the pious age old institution of family and marriage are searched, there is no end to fall down. In the marriage, sex is not primary object. It is ancillary to the relationship. It is for the procreation of ‘dharmaputra’ that is religious duty for getting rid of ‘Pitri rin’. The concept of marriage was lateron misunderstood. Particularly when ‘Niqah’ was said to be for legalisation of sexual intercourse for procreation of children (Abdul Qadir v. Salima[vi]). In ‘Niqah’ sex got primacy and purity was lost. The Christian marriages are sex relations for life (Hyde v. Hyde[vii])
Romance (sex) from dharma to pleasure: Osho Acharya Rajnish wrote ‘from sambhog to samadhi’, ‘from sex to super consciousness’. He advocated a thesis that the serenity one realises after sex is identical to that one enjoys in samadhi or same as one gets after burning dead body of one’s dear in cremation place.[viii]
Sex causes death (end) of romance. Romance (sex) is most pious dharma of legally wedded couples of any caste, colour, creed, religion or community. Unregulated sex of men with any or many is ‘lower’ even to beastly behaviour. Animals, insects, creatures, creepers and the beasts all multiply at given time and place. Period is fixed. None of these touch the female that is pregnant or unwilling or not ready for sex. Men are the only special where in there is no security against any, of any age, or period, any time or any place. This phenomena in sex is however not new. Manu has talked about it. It is there in Manusmriti, that even son and mother should not meet in seclusion. In seclusion or darkness, two opposite sexes become men and women alone. No relations survive. Sex instinct may arise and ‘Rakshas’ in men/women may rise.
The relations turn out to be one of two opposite sex. (What a sublime law does it lay down?) A curative and preventive way out; The circumstances are determinants of safety and security. Avoid places of loneliness, seclusion, darkhours, late night movements, lonely movements, the risk of sex victimisation is minimized. Manu is credited to have said that women always need to move in company of a male, of father till maiden, of husband, when married, of sons when elderly, she should never move out alone and unaccompanied. The reason sex of women is jealously guarded. This passage is read as manuvadi thought against woman, liberty but in fact, it is not so. Liberty does not mean liberty that eats oneself; It does not mean “Bhasmasuri” liberty[ix]. Liberty is never absolute. It is by nature restricted. Limits of liberty are earmarked. My liberty ends, where liberty of my neighbours begin, auto-regulation, auto control. ‘I don’t care’ attitude is legally impermissible; one has to care if not for oneself, but for the others. Driver of a vehicle has liberty to drive at any speed, the engine may not have limits but the driver has it. He has to care for the end, maintain a balance in speed and control, if not for himself, for others using the road.
So the principle is, care for yourself, so that others care for you. If you yourself do not care for yourself why will the other or others care for you. Collision has to be avoided or faced. If latter, why blame police or the system for consequences. Many of the cases, involving unfortunates are late evening occurrence, here in liberty of “I don’t care” clashed with liberty of “non-carings”. All these could have been avoided and must have been avoided by the I don’t care victims or immature libertarians.
This is no case means our daughters need to be caged and put under lock and key.. This also does not means, our girls do not deserve liberty; this also does not advocate slaving our ladies. This only mean awareness of situations around and action accordingly.
Attraction towards opposite sex is natural in teenagers; curiosity to know the opposite sex is natural; this creates attraction to reach the opposite sex. Sometimes it is confused with ‘Love’, called Love at ‘first sight’. It should be clear that journey to love starts out of this desire to know. It needs not end in love. ‘Make up’ or ‘break up’ like childlike interactions occur. This process is sometimes rushed up to conclude to be love or to be in love. ‘Stalking’ is one of the ways to ‘make up’, dating, mating and others are ways to romance. Juvenile laws must have heart and feeling to distinguish what leads where. Law may not break the hearts and convert something that is ‘romance’ into criminality.
Sex is in some systems claimed to be as natural as tea. There is difference in outlooks of western and eastern cultures. West is open, east is closed, and we in India are closed but pretend to be open. In the process, our children land nowhere; neither open, nor closed, neither eastern nor western and so suffer the casuality which is against culture in east but may not be of same magnitude in west. B.F., G.F., F.F., M.F, F.K. (friends on call) and B.F. (friend on benefit) are drawn from west where sex is tea, thank you sir, thank you madam, the end there after. It is not of East, we are trained in closed culture with an impression that it is backward; everything that comes from west is taken to be forward. When will our children realize that till we are in limits of our dharma, our welfare is secured and guaranteed, when we copy others, that generates disastrous consequences.
Is Romance (sex) for the pleasure? ‘No’, Free multi partnered sex is sin; It is crime punishable as gang rape. Romance ends when sex begins. Romance is life, sex is death of romance. Romance is emotion, sentiment and has link with heart. Sex activity is one of the major source of communicable venereal diseases.[x] Sexual contacts as such has to be done away with as general rule except one in between married couples. Pre married sex is contrary to the social morals but it changes from society to society and community to community. In eastern culture, it is almost rare and may be consequent to casualities like rape, but in western culture it is not taboo. In some communities, sex prior to marriage is socially approved and marital tie proceeds only when lady gets pregnant. The child belongs to father of the girl. In India, pre-marital sex is crime if girl is less than 18 years of age and it is against her will and without her consent marital sex is crime if wife is below 15 years.
Sex may be only for sex. It may not have any purpose i.e. procreation. Sex can be out of wedlock extra marital affair. Sex with purpose in wedlock has a purpose but purposeless sex is rape.
Whether early marriage solutions; ‘No’ conservative ideologies sometimes come out with readymade solution of early marriages. Their stand is that late marriage is one of the major causes of sex related issues. The scriptural laws do provide for child marriages in between 7 to 11 years for girls. Marrying a girl in menses is condemned by scriptures.[xi] There things since 2500 B.C. have changed. Life expectancy is now longer. Boys and girls are career oriented. Marriage of child is no longer on priority as it was when scriptures were written. Late marriage as such is now in system of the day. Marriage controls frequently sex it is no guarantee against doing away of sex related crimes. Married are experienced and looking into real life. Married are choicest in comparison to unmarreds. Many victims of rape are by married and married women are not in safe zone.
Is sex necessary in marriage?[xii] ‘No’ not always; it may only be for company. A new but preventable trend is coming up. These are same sex marriages, the traditional objects of marriage are procreation of children and for legalization of regulated, socially approved sex relations in married couple. The development does not require procreation as an object of marital relations, so sex incidentally irrelevant. Traditionalists in India do not accept non-procreation relations as marriage but Naz foundation view has recognised such relations as valid. It is now for, the Apex Court to decide. Such marriages are only for company. Though this argument was not raised in the Bar in Naz case. Even in traditional marriages, sex and procreation lose importance after sometime. Sex in married life is; ‘day and night only night now and then god knows when’. This the reality of sex in actual married life when company alone carries importance, so idea to change in object of marriage is not without substance. It is only question of time. More and more are turning away from marriage which generates lifelong obligation to look after spouse and children when sex almost stops. Why obligation thereafter if sex is the object? The company and confront being object of marriage do not create any problem. There need not be sexual intercourse; there need not be procreation of children. If these are, these are incidental to company and comfort. Sex or no sex, marriage continues. Procreation or no procreation relation survives.
Sex whether pious : Eastern culture treats virginity ‘no sex’ as pious and sex spoils the peity of the women. Marriage is religious and sacramental. Pre-marital sex is taboo in the east. The west is a bit liberal in sex. It is tea for west. Nothing like ‘pious’ marriage. Indians believe that sex prior to marriage is sin, obviously, pre-marital sex is bad. Such thinking is middle class mentality, for higher classes, sex does not matter whether pre or post marital. It is fun and frolic; indulged and forgotten. Extra marital affairs, pre-marital love affairs, B.F., G.F., F.B. and F.K. are specialties of the high ups. The society tolerates because they are above normal social norms. In lower echelons, sex is on sale for poverty, reasons or for lack of protection or ignorance of law and goondagiri / dadagiri, money and political influence. High society ruffian commits rape of the lower. No outcry is raised. If any, it is suppressed. It is only when middle class is victim, the issue is raked up. The reason, middle classes are backbone of every society. They assume responsibility of moral policing.
Is civil life to be kept disciplined as military cadre? Discipline in life is desirable. By and large, it has to be for life, movement and existence but its definition changes when question is where? We have dress code for schools, office, police, army, paramilitary forces, advocates, doctors and others. This is good but after we do not feel comfortable in these after certain hours, we change and become relaxed so are other indicators of discipline. Discipline (strict) is tolerated as it is not natural. It is imposed. It violates ‘nature’ which is to be free and remain free as free as air. ‘Youth’ is full of energy and the vitality and is compared to river and rivulets in rainy season. It breaks banks both sides. We regulate by making barrages and bridges across, but leave, sufficient outlets. So for ‘youth’, we can devise to regulate by mechanism of law but must leave enough outlets. Laws that plug all outlets will either damage ‘youth’ and convert these into ‘untimely older’ or would get themselves broken and this would mean putting them in jail with hard core criminals. So in all those offences that are committed or expected to be so committed, laws cannot be tough lest whole generation would forget romance. Regulate conducts but leave outlets wherein vitality flows. We cannot enforce military type discipline on civilians.
Whether tough law is guarantee for ‘no violation’ or of ‘No-offence’ is that category: A view, not very correct is; that tough law would prevent commission or repetition of that crime. Death or lifer or lifer or deaths are toughest punishments for murder. Has ‘murder’ stopped? Or its commission reduced? So is case of transborder terrorism or naxals? The Criminal Law Amendment Act 2013[xiii] moots lifer for 20 years or jail till death for rape with murder. Would it succeed in preventing rape? The answer is not so easy. Whether this tough law will succeed in protecting our women form victimized, nothing can be said of the moment. Let us hope, it will have a deterrent effect.
Life is romance and adventure: Life is better to travel, than to arrive. What is life and how should one enjoy it. Remember life is not a ‘no life’. It has to be enjoyed, it has to be lived, even bad days of life turn to be ‘ways enjoyed’ in life after these are over. Romance is nature of life. Adventure is way of life. Know more and more, unveil secrets of nature, moon is our. Move to other planets. Win the adversities, develop technology but spare sometime for yourself. Follow your passion; carry on with your hobby. Routine leading of life may make it dry. Make it juicy, lively. Law must assist in living life. It must be for giving happiness to largest number of people. It must undo pain and suffering. It is for promoting human welfare. It must remove all that obstruct law in its mission. Punishing law breaker is last in the mission of law; the punishment is last option in law. It is and cannot be first or only option.
Literary Romance[xiv]: Life of every living entity is kept busy for earning bread. During this period, professional or business tension dominates. To get rid of this tension, every person searches avenues to let it off; some find in wine, some in wealth pursuits and some in women, (w.w.w.) some in games and sports, some in writing, some in tours and travel and some in music, dance, art and the paintings. List of hobbies and way of romance are unlimited. It is all to let feelings, sentiments, emotions, love, failure in love to steam of, let off.
The romance is natural crave to all. The reel life gives impetus to it. Films are easy modern substitutes to what we used to get in paintings at khajuraho (M.P.) and Konarka (Sun Temple) (Odisha) or what we search for in P.B. Shelly and Rahim. By the turn of events in history, romance became private life’s personal matter. In public shows, exposure of body, nakedness and vulgarity are displayed as romance became matter of criticism in public. Feelings of romance got let off in raunchiness, flirting, cajoling, vulgar jokes of those who indulged and those who suppressed, the things came out in form of stalking, voyeuring, ragging and crimes like rape, gang rape, custodial rapes, attempted misconducts against girl students by the male teachers, against inmates of girl hostels by employees of hostel and criminal conspiracy of women wardens. We can provide outlets to the feelings of romance. We cannot totally stop it. Effort to stop romance may result as casuality to some and gain to none. The deviations can be stopped subject to better outlets being given. Youth is like ‘flooded river’. It can be tamed but cannot be stopped let us acknowledge this reality and act without damaging personality of the ‘youth’. Is law the only way? Needs to be debated.
Criminal law (amendment) Act 2013 proceeds on this thought that law is remedy for every malady. This is totally misconceived, we cannot devise and divide men and women in two water air tight compartments. By nature, these are one, none of the two can survive fruitfully separately. Men need women and women need men. This is nature; Prakriti and Purush, Sky and earth; one cannot alone serve the purpose or complete the mission for which their existence is ‘yoga’ type training may be experimented in colleges, which may regulate the energy in youth without damaging the personality.
The crimes against women are increasing but can we put all our young in jail for every advance they make to girls? Stalking and voyeurism are light, jest, jokes, romances. Penalising these is to put unnecessary checks on ways to romance. Life of youngsters whether boys or girls would become dry and sordid, it is not everything that takes boys and girls nearer is declared crime. Sex includes many things. Stalking necessarily first step to even advance sex or crime. It may be innocent civil way to introduce one to the other. Making stalking a crime proceeds probably on idea that it is first step to rape. It may not be properly conceived. Most of the sex related crimes are ‘first time assaults’ on the victims, pounced, did and disappeared, never to appear again. Stalking does not precede and when crime is of rape, (higher) and there is no sense in prosecuting accused for stalking when charged with rape.
One thing should be clear. Offences against women are social crimes. Remedy for these lies in society. Prevention is better than cure. Social crimes can not be uprooted by law alone. Law would help, would mitigate but would be effective only when imformal law enforcement agencies like parents, teachers, tribal chiefs, panch, sarpanch and village pradhans are out to stop these offences. Police and courts alone can not uproot this category of crime.
Whether urban life contributes to increase in offences against women[xv] : ‘Youths’ from rural background are less frank, trained in a culture where in families lived together, in a climate different from what we find in urbanized families, these have money constraints, have urgent need to settle, timid and caring. In this background, these youth suffer from complex, her away from opposite sex, the desire to know, the curiosity is suppressed by their village culture. Their aggressiveness remains subdued and comes out when opportunity comes. ‘Youth’ in urban culture, are frank and economically well off; deal with attraction towards opposite sex effectively, these are experienced in co-education and take attraction not very seriously but in sports man’s spirits. Real problem is, ‘youth’ of the two coming nearer. One from rural background and the other from urban background. It is here that informal law enforcement machineries are required to be more vigilant, alert and caring. The formal law enforcement machineries police and court have no business.
Flirtings whether crimes – ‘Flirting’ is free mixing, free chatting, dating, doting, mating and intimate relations not necessarily pre-marital engagements. This may be friendship and intimacy just for company’s sake and as time pass, for and in between adult couples. It is romance cannot be criminalized. Couples sitting in parks, passing time, gossiping everything without topic, visiting pictures in malls or cinema halls, exchanging gifts are enjoyments of purely private nature and law or law enforcement agencies cannot be permitted to peep in private moments of couples in romance. These are harmless flirting and law has to keep itself far away from these incidents.
What is Stalking?
Definitions of stalking vary from jurisdiction to jurisdiction. Different definitions may be used in criminal stalking codes and in civil stalking codes for protection order or restraining order purposes. The Stalking Resource Center[xvi] defines stalking as “a course of conduct directed at a specific person that would cause a reasonable person fear.”
Stalking can take a variety of forms. Stalkers may physically follow their victims, call them on the phone, send them letters or packages through the mail or through a courier, bombard their victims with emails or instant messages, photograph them from a distance or with hidden cameras, install surveillance software on their computers, and use global positioning systems (GPS) to track them in their cars. Tracking and intimidating a victim are stalking regardless of the method used.
Some of the stalker’s behavior may constitute a crime in and of itself (for example, trespassing on her property to peep into her windows or harassing and intimidating her by making threatening telephone calls). However, some stalking behavior is not criminal by itself (following her on a public street; making a non-threatening telephone call). Such behavior may become criminal, however, when it becomes a pattern or course of conduct that places a victim in fear.
A criminal code that defines stalking as “physically following” fails to protect victims who are stalked through the phone, mail, or computer. Similarly, tribal code provisions that limit protection to victims whose stalker possesses the conscious intent to harass or harm their victim do not adequately protect victims. Many stalkers mistakenly believe that they have a relationship with the victim that does not truly exist. They may even erroneously believe that their attentions are welcomed by the victim. This belief, however inaccurate, may render the stalker immune from prosecution if the code requires a conscious intent to harass or harm the victim. Focusing on the effect of the stalker’s behavior on the victim provides better protection and safety for Native victims. Tribal stalking codes criminalizing behavior that would cause a reasonable person to fear may be more effective.
It is a federal crime to stalk another person across state, tribal or international lines, using regular mail, e-mail, or the Internet. The defendant must have the intent to kill or injure the victim, or to place the victim, a family member, or a spouse or intimate partner of the victim in fear of death or serious bodily injury. This crime is punishable by a period of incarceration from five years to life.
Whether stalking is more than harmless flirting? If the “anti-rape Bill’ ran into problems in Parliament, one of its most contested provisions was punishment for stalking, voyeurism. Sharad Yadav of the JD(U) famously said trailing a woman was the only way to her heart, raised too much mirth in the Lok Sabha. However, while many parliamentarians felt the legislation was too harsh on this. A little adjustment was made, these are now available in first instance.
The fact is that anti-stalking laws, while relatively new, are now in existence in many countries. In addition to criminalizing certain behaviour, anti-stalking laws may offer victims additional protection against their stalkers, such as confidential addresses. Judges are allowed to deny bail to accused stalkers who pose a credible threat to a victim. While referred to specifically as anti-stalking laws in some countries, in the United Kingdom, these provisions are covered under its anti-harassment laws.
Anti stalking laws in East and West[xvii]
In Afghanistan : The government passed the ‘Elimination of Violence Against Women (EVAW)’ law as part of the Shia Family Law in August 2009, which apparently prohibits stalking of women (not men). However, implementation is slow and problematic.
In Australia : Every Australian state enacted laws, prohibiting stalking during the 1990s, with Queensland being the first state to do so in 1994. The laws very slightly from state to state, with punishment ranging from a maximum of 10 year’s imprisonment in some states to a fine. Most Australian states provide the option of a restraining order in cases of stalking.
In Bangladesh : In the wake of a high court direction, the government modified an Act in 2010 to allow men who stalk women to be tried summarily. Offenders can be sentenced to one year in prison or a fine.
In Canada : Section 264 of the Criminal Code of Canada titled “criminal harassment”, addresses acts which are termed “stalking” in many other jurisdictions. The provisions of the section came into force in August 1993 with the intent of further strengthening laws protecting women.
In Japan : It enacted a national law in 2000 to combat this bahaviour after the murder of 21 year old Shiori Ino, whose complaints against her stalker had been repeatedly ignored. Acts of stalking are now viewed in the country as “interfering (with) the tranquility of others lives”.
In Italy : after a series of high profile incidents, a law became effective in February 2009 making continuing harassment that leaves a victim scared for her safety or that of her near ones, or causes her to change her “living habits”, a criminal offence punishable with imprisonment ranging from six months to four years. The punishment is more severe if the perpetrator has a past relationship with the victim or if the victim is pregnant or a minor.
In Israel : The country enacted law for the Prevention of Stalking in 2001, “which is intended to protect a person from harm occasioned to their well being, privacy, freedom, or body, by another person, acting in a manner constituting stalking (i.e. intimidating harassment), or bodily harm”. The court may issue a protective injunction against a person who engaged in stalking, or impose further restrictions.
In South Africa : The legislative assembly passed the protection from harassment bill in August 2011 providing for protection against harassment and including sections concerning protection orders and cyberstalking.
In United Kingdom : In November 2012, the government amended the existing law to specially deal with stalking behaviour. However, even before the enactment of the Prevention from Harassment Act, the Malicious Communications Act 1988 and the Telecommunications Act 1984 criminalised indecent, offensive or threatening phone calls and the sending of an indecent, offensive or threatening letter, electronic communication or other articles to another person.
In United States : The first state to criminalise stalking in the US was California in 1990 due to several high profile cases, including the 1982 attempted murder of actress Theresa Saldana, the 1988 murder of actress Rebecca Schaeffer, and five Orange County stalking murders, also in 1989. Within three years, every state in the US had followed suit on the crime of stalking. To use marriage for same sex relations is too much. These should not try to fit in that description but definitely add to the concept of family.
In France: The Upper House (senate) has voted in favour of same sex marriages on 5 April, 2013. The way for same sex marriage law is now clear. In France it has been welcome as great social reform since in 1981 when death penalty was abolished. The conservatives in France which includes Catholics, French Muslims and Evangelical Christians has opposed the move of the government.[xviii]
Whether parties to gay relations are criminal?[xix]
In India we have section 377 in IPC which criminalises gay relations and this case has been declared unconstitutional in Naz Foundation case[xx] but the position is not clear in USA. The submission here is that to use the term marriage for same sex relations is a matter which cannot be tolerated. Why should these relations be permited to enter in the pious marital relation and why should they try to fit in these description. At the most a concession can be given to these relations as innovative concept of family. In 2003, the US Supreme Court in Lawrence v. Texas[xxi] ruled that laws criminalizing sodomy were unconstitutional. Closer home, last year, the Supreme Court of India seized with identical question on an appeal against decision of Delhi high Court in Naz Foundation case[xxii] which it is yet to decide. By June this year US Supreme Court may pronounce judgement in the two laws on the gay rights under scrutiny i.e. California’s Proposition 8. One out of these is state Act and other is Federal Act. The issues in both are: whether the laws that permit same sex relations between consenting adults are or not constitutional. The Wolfendem Committee report of England and Naz Foundation view as it may come after Supreme Court’s Decision would be relevant before US Fedral Supreme Court for deciding the gay rights laws. By June this year, the US Supreme Court, would pronounce judgment in two laws under scrutiny: California’s Proposition 8 and the Federal Defence of Marriage Act, popularly called DOMA.
What is proposition 8 of California?[xxiii]
Proposition 8, a law made by plebiscite, inserted the following words into the constitution of California: “only marriage between a man and a woman is valid or recognised in California”. It was passed in November 2008 to specifically overrule the judgment of the Supreme Court of California, which held that same-sex couples have a constitutional right to marry. Proposition 8 was then challenged and, affirming the trial court’s decision to strike it down, the US Court of Appeals in San Francisco held that the state’s voters were not permitted to withdraw or negate the right to marry once it had been recognised by the state Supreme Court. This ruling was confined to California.
DOMA View –
Marriage is legal union between two opposite sex on one to one basis. DOMA, the other statute under consideration, has a much wider reach. Since it is federal, it applies uniformly to all 50 states. DOMA defines marriage as a legal union between one man and one woman, and the word “spouse” refers only to a person of the opposite sex. It thus comes in the way of the states that might want to legalise gay marriage, by essentially saying that the federal government does not recognize that marriage. Under Indian law, capacity to marry is given to every body, of certain age e.g. 18 years for girls and 21 years for boys. No maximum age is prescribed. Gay relations are not recognized as marriage in Indian law. No inability is provided by law. However, marriage can be dissolved by court if suit is filed with allegation of disabilities; physical, mental or legal. ‘Inabilities’ and ‘disabilities’ are not same. Same sex relations are not encouraged by Indian laws. Law is same amongst civilized and cultureds. Deviations are but needs not specific notice. Inability to marry means same-sex couples are denied around 1,100 federal benefits that opposite-sex couples enjoy, such as insurance and social security survivors benefits, immigration and the filing of joint tax returns. But former president Bill Clinton, who signed it into law, has subsequently changed his position and advocates its repeal. Eight federal courts have held DOMA to be unconstitutional. Obviously both these Acts, consider the object of marriage to be sex relation. Gays are same sex relations. The question of sex in gays does not arise in normal way. If the view submitted is in this paper is considered, the plight of even transgenders may also be lessened. Marriage is for company and comfort. Sex is not first choice of marriage. It is not primary object. If it can be object of marriage, it is incidental and secondary.
California is one of the nine states in the US that allow same-sex couples certain rights, such as the right to enter into a civil union and the right to adopt. However, the right to marriage has become a bone of contention. Neither DOMA nor Proposition 8 is being defended by the executive. Proposition 8 is being defended by its initiators. The Supreme Court has never before allowed the proponents of a law to defend its validity before it. Similarly, DOMA is being defended by a section of Republications from the House of Representatives, with the permission of the court. In the DOMA case, the federal government has appealed that the decision of the appeals court, which ruled against DOMA, be upheld. In order words, the executive is requesting the Supreme Court to definitively and conclusively hold DOMA and Proposition 8 to be unconstitutional, so that it can stop enforcing them. But in the absence of an adversarial equation, the court is actively grappling with the issue of jurisdiction in this case.
The US Supreme Court has no power to issue advisory opinions, unlike in India, where Article 143 of the Constitution allows the president to refer a question of law or fact of the Supreme Court for its opinion. Another thorn that has presented itself is that the judges are divided on whether their ruling on Proposition 8 will apply to all 50 states or only the nine states where some form of civil union or domestic partnership is currently permissible.
Whether DOMA litigation would involve issue of the separation of powers?: The American concept of federalism is different from the Indian concept. The American constitution provides that powers not expressly granted to the federal government, and not prohibited to the states, are reserved for the states – in India, residuary legislative subjects are granted to Parliament. It is being argued that because every state has always held the power to legislate on marriage related issues, as a residuary power, DOMA is an affront to the American concept of federalism. As such, constitutional aspect of separation of power is definitely involved and needs to be considered while scrutinizing ultra-virus of DOMA legislation.
While same-sex couples are looking to the Supreme Court for respite, this particular case doesn’t seem to be one where it can issue a sweeping judgment permitting or constitutionalsing gay relations. Moreover, the US Supreme Court, which sits with its present conservative learning formation of five Republican appointees and four democrat appointees would find it difficult to and hesitant to adjudicate on the issue.
Another question involved is if the procreation of child is the stated purpose of marriage, why must couples above the age of 55 and infertile couples be afforded the right to marry? Can our parliament legislate prohibiting citizens to marry after age of procreation is over? Can such age be fixed? How long can one procreate? Would laissez faire advocates ever tolerate such proposition. Live in and gay relations are affront to and for all those traditionalists stand for but care has to be taken and distinction has to be made in live in relations type of deviations and the institutions of marriage. The question arises as to why same sex couples would be prevented from marrying once they were permitted to adopt children? Ultimately, it may appear that the court may not want to enter into this socio-political wrangle at this juncture. Its position has consistently been that it is there to adjudge the law rather than to make it. It is thus an issue of ballot versus gavel, and in this case, it appears that the gavel wants to see what balance the ballot will strike. Let the courts take cue from the executive.
Whether law only remedy for every malady? : It is unfortunate that law is considered to be only remedy for every malady, without evaluating the symptons of malady; which may be; social, economic, religious, outcome of caste, colour, creed, race or community, for all so many, law is not and can not be sole remedy. The social type problems and legal type problems are quite separate and need to be tackled separately. So are, ethical or moral type issues. Law is effective if morality supports and if moral is not with law, the legal remedy would either be less effective or no effective. Religion, caste, community, society, love, order, respect are other influential connecting factors that are very relevant in formal or informal enforcement of law.
Law know your limit : This law, that law, here law, there law, law everywhere, from bedrooms to place of work. Law leaves no space for romance unfortunately law does not know its outer limits if does not know how long? Where to stop? What to leave? Any place where I am all alone and there is ‘no law’. It needs to be researched and law must leave some space, some moment where one can behave in his own way without fear of law. ‘Right of privacy’ takes note of this travail of individual but liberty to romance exists and survives beyond boundaries guarded by rights of the privacy. The law has to limit itself in this area of romance and must realize hitherto and no more.
Law is for doctors, it is for engineers, for traders, manufactures, farmers, tillers of land, for forest, dwellers, for me and for my wife, for you, for children, for governors, for governed. Law of birth, law for death, law prior to birth, law after death, law for marriage, law for sex. It is impossible to think law where not. Do we not need to have doctors for the law, engineers for the law, farmers, labourers, industrialists, traders, for the law? Who will take care when law falls sick or when, its machineries do not work, mechanism to repair the faults in law, and so on so forth.
Why do we expect everything from law? The reason is obvious, its link with rulers. Law is linked with power and those in power. It is strongest weapon in armoury of state but question is; can it alone give remedy for every malady? Obviously, you can get medicines alone from shop of chemist, books from that of book sellers, groceries from provision store, so law from state. Can we think of single window service wherein all are just on asking?
Boys and girls in co-educational institutions meet, talk, live and work together say for 16 hours together. Their relations are healthy equal and very sober. There is nothing to complain but possibilities lurk in that some good friends may fall apart for no reasons. Do they or either become a criminal when relations turn sour? Live in relations have every chance of creating a criminal. Promise to marry if fail, attract prosecution frequently. Can we not stop creating criminals and making such conducts a crime wherein no criminality exists. Actually what we do and think is that whenever two or opposite sex sit together they have nothing except sex relations. This is our habit. Can we not start thinking that the two have something more, something different from sex to discuss when the two are together? Who is then at fault? The two youngsters or numerous onlookers? Who needs care the two or those onlookers? Submission is we need to change our mentality towards on youngsters. Sex is not that important to our young generation as it is to onlookers. These need treatment. So the process of criminalization of youth must stop. Those in power should desist from abusing their authority in this sensitive area as not only future belongs to our youth but they have good share to share with us in present. Legislation in this area must be slow and cautious. Let us not forget that surgeon’s knife is not for kitchen and surgeon by kitchen knife would bring disaster.
[i] Bhagwat Gita as it is by Swami Prabhu Paat of ISCON for further see also Commentaries on Gita by Dr. RadhaKrishnan, by Shri M K Gandhi, by Vinova Bhave and by Maharshi Mahesh Yogi
[ii] Ibid. Supra 2.(Sense of knowledge) Five Gyanendriya are: eyes(20, ears(2), nose(1)
Five Karmendriyas(sense of action) are: Hands, Legs, organs of excretion and generation.
[iii] India Constitution, by Prof. G. P. Tripathi, Chapter 4, CLP, Allahabad, 2013
[iv] See Author’s article, From laws of Religion to Religion of Law, 2012, MATS University Journal, Vol. I, Issue 2, ISSN No. 2250-3889, Pages 60-71
[v] Ibid. Supra at page 266
[vi] (1886) 8 Allahabad 149
[vii] 1866 L.R. P.& D. 130
[viii] See Acharya Rajnish’s book from Consciousness to Super consciousness
[ix] Ibid. Footnote 3 Supra
[x] National Violance Against Women Survey(NVAW) cited in Tjaden, Patricia & Thoennes, Nancy, “Stalking in America” Findings from the NVAW”, National Institute of Justice Centers for Disease Control & Prevention Research in Brief(1998)
[xi] See Author’s book ‘Indian Jurisprudence’ Published by ALA, Fridabad
[xii] Suleman J. in Case quoted above(see footnote 5) was of the view that marriages are for legalization of sexual intercourse and for procreation of children, this view is quoted and taught as view of the privy Council and binds the Courts under Article 372 of the Indian Constitution as law in force.
The Author does’nt agree with this view. The reason is that Suleman J. was elevated to the privy in stop gap leave arrangement. The judgement in question was heard by Privy Council and justice Suleman was asked to write the judgement. He wrote the day he retired and the judgement was pronounced by a Bench of which suleman j was not a member. Therefore it does not bind the courts in India either on Article 141 or 372.
Another point is that if the marriage is for the twin purposes above why does the system of law permit people in late sixties to marry. The author is of the view that none of the above view are primary objectives of marriage. The primary object is that marriage is for company and mutual comfort.
[xiii] Act no. 13 of 2013, 30 Sections divided in six chapters; Chapter I – Preliminary, Chapter II – Amendments to the Indian Penal Code, 1960, Chapter III – Amendments to the code of Criminal Procedure Code, 1973, Chapter IV Amendements to the Indian Evidence Act, 1872, Chapter V Amendement to the protection of children fron sexual offences act 2012, Chapter VI Miscelleneous
[xiv] ‘Drig’, ‘Urghat’, ‘Tootat’, ‘kutumb’, ‘Jurat’, ‘Chatur’,’chit’,’preet’
‘parat’, ‘ganth’,’durjan’, ‘hiye’, ‘dai’, ‘nai’, ‘yeh’, ‘reet’ bihari Satsayi
See also kalidas Meghdutam, Abhgyan Shakuntalam and P B Shelly, John Milton and Surdas for further on this topic
[xv] See the controversy recently raised by Sir Sangh Sanchalak of RSS Shri Mohan Bhagwat and issues joined by others on this issue that is covered by media in detail.
[xvi] Supra at 10
[xvii] Nayanika C. compilation
[xviii] Times of India, Raipur, Saturday, 13 April, 2013 in Times Global Part page 9
[xix] Rahul Kriplani – on gay marriage; Page 9-10 are based on the Article of Mr. Kriplani.
[xx] Naz Foundation vs Government Of NCT Of Delhi, WP(C) No.7455/2001
[xxi] 539 US 558 (2003), In a 6-3 ruling, the Supreme Court overturned a Texas sodomy law, holding that private consensual sex between adults is a fundamental liberty (people have a fundamental right to privacy) protected by the Constitution under the doctrine of substantive due process. Lawrence overturned the Court’s earlier decision in Bowers v. Hardwick, 478 US 186 (1986), that upheld the constitutionality of a Georgia sodomy law on the basis that there is no constitutional protection for sexual privacy.
[xxii] Suresh kumar Kaushal v. Naz Foundation SLP (Civil) 15436 (2009)
[xxiii] Proposition 8 was a California ballot proposition and a state constitutional amendment passed in the November 2008 state elections. The measure added a new provision, Section 7.5 of the Declaration of Rights, to the California Constitution, which provides that “only marriage between a man and a woman is valid or recognized in California.” By restricting the recognition of marriage to opposite-sex couples, the proposition overturned the California Supreme Court’s ruling of In re Marriage Cases that same-sex couples have a constitutional right to marry. The wording of Proposition 8 was precisely the same as that which had been found in Proposition 22, which had passed in 2000 and, as an ordinary statute, had been invalidated by the State Supreme Court in 2008. California’s State Constitution put Proposition 8 into immediate effect the day after the election. The proposition did not affect domestic partnerships in California, nor same-sex marriages performed before November 5, 2008. After the elections, demonstrations and protests occurred across the state and nation. Same-sex couples and government entities filed numerous lawsuits with the California Supreme Court challenging the proposition’s validity and effect on previously administered same-sex marriages. In Strauss v. Horton, the California Supreme Court upheld Proposition 8, but allowed existing same-sex marriages to stand (under the grandfather clause principle). United States District Court Judge Vaughn Walker overturned Proposition 8 on August 4, 2010 in the case Perry v. Schwarzenegger, ruling that it violated both the Due Process and Equal Protection clauses of the United States Constitution. Walker issued an injunction against enforcing Proposition 8 and a stay to determine suspension of his ruling pending appeal. The Ninth Circuit Court of Appeals continued the stay, keeping Walker’s ruling on hold pending appeal. On February 7, 2012, in a 2–1 decision, a Ninth Circuit Court of Appeals panel affirmed Walker’s decision declaring the Proposition 8 ban on same-sex marriage to be unconstitutional. The panel also unanimously affirmed Judge Ware’s holding that Walker was not obligated to recuse himself from the case because he is gay. Still, the panel continued a stay on the ruling, barring any marriages from taking place pending further appeals. On June 5, 2012, a majority of the full Ninth Circuit denied a petition for rehearing en banc and stayed the ruling pending appeal. The proposition’s proponents filed a petition for certiorari with the U.S. Supreme Court, requesting that the Court review the case, on July 30, 2012. On December 7, 2012, the Supreme Court granted the proponents’ petition for certiorari. The Court is expected to issue its ruling in Hollingsworth v. Perry by late June 2013