Ram Boolchand Jethmalani
Published on – 16th July , 2020
Article by – Shivani Bharti, 2nd year BALLB, Symbiosis Law School, Pune.
The legal stalwart, Ram Jethmalani was born in pre-partition Sindh of present Pakistan and after partition he shifted to Mumbai. His journey as a criminal lawyer started from an early age of 17 and from thereon he practiced it for nearly 80 years. He became famous for his brilliant arguments in the country’s last jury-decided case of Navy officer K.M. Nanavati, who was accused of murdering his wife’s alleged lover for having an extra-marital affair; after which there was turning back of the luminary figure we know by the name Ram Boolchand Jethmalani.
Jethmalani’s career is dominated by high-profile cases. He has time and again proved his mettle in the court-room which undoubtedly makes him one of the highest-paid lawyers in the country. His cross-examination skill of witnesses is enviable by top-notch lawyers which earns him run-ins with some of the most powerful people in the country. From Haji Mastan to the assassins of Indira Gandhi and from Rajiv Gandhi to L.K. Advani, Jethmalani has represented people from all walks of life, especially those who would find themselves on the wrong side of history.
When he was asked why would he appear for the likes of Haji Mastan and stock scam-accused Harshad Mehta, he said that he appeared for “smugglers and goondas”, adding, “they give me good money, which allows me to appear for free for those who can’t pay and under the Constitution, everybody deserves fair representation in court”. He once said in an interview that he charged only those who could afford it. He also represented Parliament attack-accused Afzal Guru. In another instance, when he was questioned about fighting a case for Asaram Bapu accused of rape of a minor he said, “I decide according to my conscience whom to defend. A lawyer who refuses to defend a person on the grounds that people believe him to be guilty is himself guilty of professional misconduct.” In a different context, he also added, “My practice is of a different kind from other lawyers. I make tons of money at the bar, but I do it from 10% of my clients. Mr. Bapu is in the 10%.” One of his juniors says that apart from his 10% cases, rest is pro bono.
Known to speak his mind with unflinching courage, Ram could be acerbic when criticising poor judgments or court orders. A maverick lawyer that he was, he was way ahead of even the judges in matters pertaining to criminal jurisprudence. And one thing that he often publicly disdained was the lack of good judges who understood that criminal cases have to be decided on proof and not public outcry.
Jethmalani, being a prominent face in the legal field was also a political figure in which he took an active interest. Jethmalani once paid Indian Express for an ad asking the government 12 questions on the black money issue addressing the BJP party. He had never shied away from criticizing any government for its unpromising policies, be it the Modi government or Kejriwal’s. Added to that, he served as the Union minister for law in the Atal Bihari Vajpayee government twice. He was elected a member of Parliament in the 6th and 7th Lok Sabha on a Bhartiya Janta Party ticket from Mumbai.
For his sheer determinance to his work coupled with having a magnanimous attitude towards his rivals and for his contibution to the society at large, Jethmalani was awarded with the Human Rights Award by World Peace Through Law in 1977. He has also authored books such as Big Egos, Small Men, Conscience of a Maverick, and Maverick: Unchanged, Unrepentant, among others.
At the age of 95 years, Ram Jethmalani passed away in New Delhi, with his dying words being “I wish good for the country.”
Sexual Harassment at workplace in light of Vishakha Guidelines as laid down in Vishakha v. State of Rajasthan
Article by- Shivani Bharti, 2nd year BALLB, Symbiosis Law School, Pune.
Published on- 14th , July , 2020
When we talk about gender inequality, we realize that it is not a present time issue but it has been present since time immemorial. To understand the gravity of the matter, let me familiarize you with a case that was analyzed by the Supreme Court of India through the lens of gender equality, recognizing sexual harassment in the workplace as a “social problem of considerable magnitude” and discriminatory form of violence against women. The case name goes by Vishaka and others v State of Rajasthan.
Before that, let’s travel back to 1992, shall we? Allow me to tell you a real time story of a lady named Bhanwari Devi, a social worker at village level in Rajasthan. Her job, which was managed by the government of Rajasthan, involved going door-to-door in the village, campaigning against social ills, talking to women about hygiene, family planning, the benefits of sending their daughters to school; she would discourage female foeticide, infanticide, dowry and child marriages. She was gang raped infront of her husband after brutally assaulting him. The horrifying incident took place because she tried to stop the child marriage of one of the assaulter’s daughter i.e Ramkaran Gujjar’s daughter, who was just nine months old. She went on to file a complaint for which the policeman demanded her to keep her clothes at the PS as evidence. She was left with no option but to wear her husband’s bloodstained dhoti while coming back to her house. Later on, the trial court acquitted the accused and the High Court said this was nothing but a group assault.
Here, it is pertinent to note that in India, before 1997, there were no formal guidelines for how an incident involving sexual harassment at workplace should be dealt by an employer. The victim had to lodge a complaint under Section 354 of the Indian Penal Code that deals with the ‘criminal assault of women to outrage women’s modesty‘ and Section 509 that talks about punishment for using a ‘word, gesture or act intended to insult the modesty of a woman’. The two sections left the interpretation of ‘outraging women’s modesty‘ to the discretion of the police officer.
Therefore, the factor that justice was not served to Bhanwari Devi caused huge uproar in the society during the hearing of the case. This case shaped the women’s movement in India. It encouraged more rape victims to prosecute their rapists. The case became relevant to not only rape cases but it also became relevant for harassment cases. The appalling injustice coupled with the undying fighting spirit for justice of Bhanwari Devi inspired several women’s groups and NGOs to file a petition as class action, under the collective platform of Vishaka in Supreme Court against the state of Rajasthan and the central government of India to enforce the fundamental rights of working women, in 1997. The action stemmed from the lack of legislative protection for the rights of working women as enshrined in India’s constitution. Thereby, the court, in the absence of such legislation, was petitioned to provide alternative legal protection for the rights of working women until legislation could be drafted and passed.
The court decided that the consideration of “International Conventions and norms are significant for the purpose of interpretation of the guarantee of gender equality, right to work with human dignity in Articles 14, 15 19(1)(g) and 21 of the Constitution and the safeguards against sexual harassment implicit therein.” Supreme Court of India defined sexual harassment and set guidelines for employers. It resulted in what are popularly known as “Vishaka Guidelines.” These guidelines were the first enforceable civil law guidelines on the rights of women to be free from violence and harassment in both public and private employment. It is seen as a significant legal victory for women’s groups in India. Throughout the text of the case document, Bhanwari’s story was supported by what other institutions and authorities had said about violence against women, gender-based discrimination and human rights. This reinforces the legal value of international human rights standards on gender equality, and helps build a unified global commitment in tackling the harassment issue.
Vishaka Guidelines
- It shall be the duty of the employer or other responsible persons in work places or other institutions to prevent or deter the commission of acts of sexual harassment and to provide the procedures for the resolution, settlement or prosecution of acts of sexual harassment by taking all steps required.
- Definition: Sexual harassment includes such unwelcome sexually determined behaviour (whether directly or by implication) as:
a) physical contact and advances
b) a demand or request for sexual favours
c) sexually coloured remarks
d) showing pornography
e) any other unwelcome physical verbal or non-verbal conduct of sexual nature - Preventive Steps: All employers or persons in charge of a work place – including private employers – should take the following preventative steps, which include:
a) Express prohibition of sexual harassment as defined above at the work place should be notified, published and circulated in appropriate ways.
b) The Rules/Regulations of Government and Public Sector bodies relating to conduct and discipline should include rules/regulations prohibiting sexual harassment and provide for appropriate penalties in such rules against the offender.
c) Appropriate work conditions should be provided in respect of work, leisure, health and hygiene to further ensure that there is no hostile environment towards women at work places and no employee woman should have reasonable grounds to believe that she is disadvantaged in connection with her employment. - Criminal Proceedings. Where such conduct amounts to a specific offence under the Indian Penal Code or under any other law the employer shall initiate appropriate action by making a complaint with the appropriate authority. In particular, it should ensure that victims, or witnesses are not victimized or discriminated against while dealing with complaints of sexual harassment. The victims of sexual harassment should have the option to seek transfer of the perpetrator or their own transfer.
- Disciplinary Action: Where such conduct amounts to misconduct in employment as defined by the relevant service rules, appropriate disciplinary action should be initiated by the employer in accordance with those rules.
- Complaint Mechanism: Whether or not such conduct constitutes an offence under law or a breach of the service rules, an appropriate complaint mechanism should be created in the employer’s organization for redress of the complaint made by the victim. Such complaint mechanism should ensure time bound treatment of complaints.
- Complaints Committee: The complaint mechanism should be adequate to provide, where necessary, a Complaints Committee, a special counsellor or other support service, including the maintenance of confidentiality.
- Workers’ Initiative: Employees should be allowed to raise issues of sexual harassment at workers meeting and in other appropriate forum and it should be affirmatively discussed in Employer-Employee Meetings.
- Awareness: Awareness of the rights of female employees in this regard should be created in particular by prominently notifying the guidelines (and appropriate legislation when enacted on the subject) in suitable manner.
- Where sexual harassment occurs as a result of an act or omission by any third party or outsider, the employer and person in charge will take all steps necessary and reasonable to assist the affected person in terms of support and preventive action.
These guidelines were finally enacted as law on prevention of sexual harassment against female employees at the workplace in 2013. The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013, was made effective on 23 April 2013 by way of publication in the Gazette of India.
Despite widespread recognition of her story and the enactment of laws to protect women from sexual harassment at work, Bhanwari waited for over more than 20 years but is yet to receive justice against her attackers who roam free. Her continued fight is a reminder of the challenges women continue to face in accessing justice.
Disclaimer: Every single effort has been made to maintain the accuracy of this publication at the time of writing the article. The article does not intent to provide any kind of legal advice or claim a guaranteed outcome and the law which has been mentioned may have changed since the publication. Readers considering legal action should consult with an experienced professional lawyer to understand the current laws and how they are in a position to affect the case. For any specific technical or legal advice on the information provided in the Article/blog, please contact us through our email.
Site referred :
Vishaka v. State of Rajasthan
RIGHTS OF AN ARRESTED PERSON IN INDIA.
Editor- Gunjan Priyambada; Published on- 13th July, 2020
The legal system in India is established on the platform of “innocent till proven guilty”. An unlawful arrest of an individual can be a violation of Article- 21 of the Indian Constitution that states, “no human shall be denied of his right to life and personal liberty except if established by law” which means that the process must be fair, clear and not arbitrarily or oppressive.
There are numerous rights that an arrested person has as provided under law prescribed by the Constitution of India:
What are the different rights of an arrested person?
1- Right to know the grounds of arrested under :-
Article- 22(1) of the Indian Constitution stipulates that no police official can arrest any individual without informing the accused the reason/ ground of his detainment/ arrest.
2- Right to be produced before the Magistrate without unnecessary delay:-
Article- 22(2) of the Indian Constitution stipulates that the police official making an arrest must produce the arrested person before the Magistrate within 24 hours of the arrest failing to do so would make him liable for wrongful detention.
3- Right to be released on bail:-
Section- 50 (2) of CrPC provides that the arrested person has the right to get released on bail by making arrangement for the sureties or just inform him of his right when arrested without a warrant for an offence other than a non-cognizable offence.
4- Right to a fair and just trial
The legal provision regarding the right to a fair and just trial can be extracted from Article 14 of the Indian Constitution according to which ,all the sides in a legal dispute must be treated equally.
5- Right to consult a Lawyer
Article- 22 (1) of the Indian Constitution provides that every arrested person has the right to choose and elect his own lawyer to defend him in the court of law for whatever crime he may/ may not have committed.
6- Right to free Legal Aid:-
Article- 39A The government in an effort towards securing justice instituted Article- 39A to provide free legal aid to people in need.
7- Right to keep quiet:-
The police or any other authority for that matter is not allowed to compel an accused person to speak anything in the court.
8- Right to be examined by a Doctor:-
Section- 54of CrPC asserts that the Court has complete discretion to order for a medical examination of an accused person at his request and the same is granted by the court when satisfied that the request is not made to delay or defeat justice.
9:- Additional rights available to an arrested person:-
• The police official must not cause death of the accused person while trying to arrest the person except when the person to be arrested is accused of an offence which is punishable with death or life imprisonment or when the accused person is trying to unnecessarily resist his arrest by turning violent and aggressive or when the accused is trying to escape.
• The police official authorised to make an arrest must prepare a cash memo with complete details of the arrest like the date and time. The same document must have signatures of at least 1 family member or any one honourable person of the locality of the accused. The arrested person has to countersign the cash memo.
• Appropriate entry must be made in the diary and be maintained by the police which must furnish all the important information related to the arrest of the person which must further include the details of the person accompanying the arrested person and also the details of the person to whom information regarding the arrest has been made.
Disclaimer: Every single effort has been made to maintain the accuracy of this publication at the time of writing the article. The article does not intent to provide any kind of legal advice or claim a guaranteed outcome and the law which has been mentioned may have changed since the publication. Readers considering legal action should consult with an experienced professional lawyer to understand the current laws and how they are in a position to affect the case. For any specific technical or legal advice on the information provided in the Article/blog, please contact us through our email.
The Gavel's Ken 