Conversion and marriage

The Allahabad High Court has recently held that conversion solely for the purpose of marriage is invalid and refused to grant protection to couples seeking protection from police and relatives. The court observed that conversion should be only after understanding the tenets of the religion and accepting them. A similar view was held by the Kerala High Court in 2012, that declared that conversion just before marriage was void and laid down such marriages to be contracted not under personal laws but the Special Marriage Act. The court was of the opinion that marriages contracted under secular law would give greater protection to the parties as opposed to the personal laws. The Supreme Court is also of the similar opinion.
Similarly, in the case of Sarla Mudgal, the Apex Court had observed that conversion to Islam solely for contracting a bigamous marriage is void and had also held the second marriages so contracted as void. The court was of the opinion that a man cannot hide behind the shied of Islam just to save himself from the loophole in the law relating to bigamy.
The courts state that in order to have a valid inter-religious marriage, the couples should get married under the Special Marriage Act.

Bigamy under Muslim law

There is a common misconception that bigamy is the rule and is widespread in Islam. While bigamy or polygamy is permissible under the Muslim law, it is an exception and not the rule. The Quranic verse on bigamy states that: you may take one, two, three or four wives, provided that you do justice between them; and which you cannot do, so take just one wife.
Thus, while bigamy is permissible, there is a proviso added to it, the condition of equality. An example on equality is that if a man has four wives and he wants to give them apples, then it is not equality if he gives one Apple to each wife. Instead, he should cut the four apples in four pieces each and give one piece from every Apple to each wife. He has to spend equal amount of time with each wife, equal gifts, equal living quarters and so on. Not an easy provision. Therefore, the added clause "it is better to take just one".
Then the question is why make the provision at all if to make it so difficult? The reason behind is that in those days a number of wars were going on and there were number of war widows. Since, the women did not go out to work, it provided a mode of providing their sustenance and protecting them from the need to beg or becoming victim of abuse. In this case, bigamy helped in providing maintenance to the widow and her children.
Another reason was that if a woman was barren, her husband could have an heir by taking a second wife.
A third reason being that if a woman was ill and unable to perform her marital obligations and the husband was not willing to leave her, bigamy helped her husband to satisfy his needs.
However, for all these reasons, the first wife should be an active and consenting party to the marriage.  A man cannot take a second wife against the wishes of his first wife. And added above all was the quranic condition of equality.
Thus, bigamy under Muslim law is an exception to the general rule of monogamous marriages and it needs to be exercised very carefully.

Rights of children

A child is that small, immature being that requires committed love and protection. A child may be described as anyone under the age of eighteen (14 under some laws). A child has various rights both under the international as well as domestic laws that are essential for his all round development.
- A child has a right to life. He has a right to live and develop his personality.
- A child has a right to proper name and parental love and care. A child has a right not to be subjected to domestic violence or neglect.
- A child has a right to be respected. A child is not to be subjected to abusive behavior of any kind in whatsoever manner.
- A child has a right to proper education. He has a right to develop to his fullest potential. He has a right to study and to play and get every possible opportunity for developing his skills and talents.
- A child has a right against discrimination on the basis of sex, color, religion, caste, nationality among others.
- A child has a right to safe and peaceful environment.
- A child has a right against exploitation, whether physical, sexual, emotional or economic. He has a right not to be engaged in child labour. He has a right not to be subjected to corporal punishment or to emotional blackmail. He has a right not to be abused sexually.
- A child has a right not to be used in armed warfare. He has every right to be protected from hostile environment. He has every right not to take part in any armed conflict, not to be used as a human shield, not to be used for revenge and not to be used as a mercenary.
A child is a responsibility on the human race. He is the future generation that needs to be taken care and provided with the best of opportunities for growth and development.

Shariat courts, khap panchayats and uniform civil code

Laws are divided into two broad categories of civil and criminal laws. While criminal law deals with the actual crimes or violation of law, civil law deals with a number of issues dealing from property matters to personal laws. India has a uniform criminal justice system that means that a person will be meted out with same punishment for a criminal act as another irrespective of their religious beliefs. A Muslim is not punished under shariat law nor a Hindu under ancient Hindu law. All are pubished under the same criminal law.
India does not have a uniform civil law to deal with matters of marriage, divorce, inheritance, adoption and maintenance and these are covered under personal laws. There are different laws dealing with these matters governing people based in their religion.
India has a definite criminal justice system and all matters of criminal activities are to be dealt by it. The shariat courts and the khap panchayats have no authority to even interfere in matters of criminal justice. These are to be handled by the designated courts created under the Constitution of India.
Article 44 of the Constitution of India provides for a uniform civil code to be formed. This code will deal with the matters of marriage, divorce, inheritance, adoption and maintenance and not with criminal justice.

Gay rights

Homosexuality has been a controversial issue in the legal history as well as the religious doctrines. With all the major religions calling homosexuality as unnatural and condemning it, the LGBT (lesbian, gay, bisexual and transgender) group has been denied the basic human rights for a long time.
Position in India
Recently the members of the 'hingra' group did a dance protesting against the non inclusion of their names in the voters list. Members of this community have had a problem with their being no place to write their sex in traditional forms that mention male and female but not the third sex.
Another issue is the criminalization of homosexual relations. Section 377 of the Indian Penal Code makes consensual same sex relations punishable along with the relations with animals or bestiality. The Delhi High Court in 2009 ruled that the part of Section 377 dealing with consensual homosexual relations is void being violative of Articles 14,15 and 21, however, the said judgement was overruled by the Supreme Court in 2013 stating that it is not unconstitutional and only the legislature has the right to amend it.
Position in the USA
In the USA, various organizations like the Human Rights Campaign are fighting for the gay rights and marriage equality. While some American states have given freedom of marriage to same sex couples, others have banned it. The Universal Declaration of Human Rights declares that every individual has a right to marry and found a family. Many regions in America with more traditionalist population actually fights against the basic human rights of the gay community.
Homosexuality: scientifically
Homosexuality is not a state of mind or unnatural act as stated by its opponents. Medically it is said to be caused by not one but a combination of genetic, hormonal and environmental factors. Doctors do not consider homosexuality to be caused as a result of psychological factors and influences. Scientists do not know why the process of natural selection has not wiped it off, thinking that maybe it gives some advantage to the heterosexual individuals.
Every human being has a right to exercise his basic human rights irrespective of his sexual orientation. To deny the gay community of its basic rights would be inhuman.

Communal violence

A peaceful environment is the prerequisite of a developed community. However, in a multicultural environment, communal tensions may erupt. India has a long and painful history of communal violence and the same has caused a large number of lives as well as property to be lost. Communal violence is highly detrimental to a progressive society, leaving behind not only economic losses but also emotional turmoil in the social fabric.
India is a secular country and the Indian Constitution provides that the State shall not discriminate on the basis of sex, caste, religion, and also provides for the freedom of conscience and liberty to practice, propagate and profess religion. The freedom of speech and expression guaranteed under Article 19(1)(a) is also subject to reasonable restrictions on the grounds of public order and incitement of offences amongst others.
The Indian Penal Code under chapter VIII deals with offences relating to public tranquility and in particular sections 146/147 that deal with rioting and section 149 that deals with punishment for unlawful assembly are attracted in cases of communal violence.
Chapter XV of the Code deals with the offences relating to religion.
Section 295 lays down the punishment for injuring or defining place of worship with intent to insult the religion of any class. The recent burning down of a church or the demolition of other places of worship are all punishable.
Section 295 A deals with deliberate and malicious acts, intended to outrage the religious feelings of any class by insulting its religion or religious beliefs. Distribution of pamphlets or making video clips insulting the religious beliefs or the religious leaders that are held in high esteem by that community are examples of such offences.
Section 296 deals with disturbing religious assembly while section 296 makes trespassing on burial places, etc punishable. Attacking religious assemblies or giving hate speeches or trespassing or defiling any burial place or grave or crematorium are all punishable offences.
Section 298 lays down the punishment for uttering words, etc with deliberate intent to wound the religious feelings of any person.
Communal violence are a vice in any multicultural and progressive society and are best to be controlled so as to protect the secular fabric of the nation.

Forced conversion issue

A person generally follows the religion of his parents, whether adoptive or birth parents. Very rarely a person changes his religion and that is because something of that new religion had impressed upon his mind.
India is a secular country. The term 'secular' is used in the very preamble to the Constitution. By secular it is meant that there is no religion of the State. State shall neither promote one religion nor demote the other. In other words, the State shall not interfere with man's relation with God.
The Constitution of India expressly lays down the freedom of religion, both in its equality clauses that state that there shall be no discrimination on the basis of religion, caste, sex, etc and also more expressly under its Articles 25-28 that lay the freedom of religion.
Article 25 provides that a person has a right to practice, profess and propagate his religion.
Article 25(1) Subject to public order, morality and health and to the other provisions of this Part, all persons are equally entitled to freedom of conscience and the right to freely profess, practice and propagate religion.
Thus, this Article gives the right to propagate the teachings of one's religion and also the freedom to follow any religion that an individual chooses to follow. However, this does not give a right to forcefully convert individuals in one's religion in the name of propagation. Under the indian Constitution every religion has an equal status and every individual is free to follow the religion of his choice. No agency has a right to impose upon his religious beliefs. The very act of forceful conversion is against the spirit of the Cobstitution and against the principle of secularism.

Need for speedy justice

It has been two years since the Delhi gang rape that shook the entire nation but still the condition of women's safety leaves much to be desired. The government came up with stricter laws to deal with sexual of fences. The punishment was increased, the scope of law expanded. There seemed to be a popular consensus in bringing about a change in the society. Media picked up the story, number of public platforms were used to spread the message but still nothing seems to have changed. Still companies like uber hire sex offenders who molest passengers. Still school girls are being raped. Women are still getting raped and molested. Human trafficking is still rampant. Eve teasing is still common. Khap panchayats and molvis are still passing flawed orders.

The biggest problem that we have is of a flawed legal instrument. We need a better implementation of laws. Unless the potential criminal is not assured of punishment, he will not be deterred. For sex offences, the deterrent theory of punishment is needed. The offender is required to be made an example to deter other potential criminals. An effective investigative machinery with speedy trials and punishment is required. Without which however stringent law is passed, it is just a paper tiger. Without proper implementation, even the most stringent law is powerless. Proper implementation of laws is the need of the hour. While the social media is doing its but in spreading awareness, the police and the judiciary has a greater role to play.

Justice delayed is justice denied. To prevent more nirbhayas, it is required that the assailants of nirbhayas are punished at a fast rate. The sooner the justice is meted out, the greater effect it will have. The longer the inveatigation and trial lingers, the useless it becomes. A sure and fast punishment is what will keep the potential offenders at bay.

Compensation in terror cases

The Bombay high court has stated that the compensation given to the families of victims of terror attacks and bomb blasts is too low. The two member bench on July 30th stated that the compensation amount of Rs 3 lakhs given to the relatives is inadequate. The honorable judges stated that when the sole breadwinner is killed in terror attacks, the families need to be compensated adequately and the amount given is too less for them. The honorable judges questioned for how long will this amount provide for them.
Out of the total amount of Rs 4 lakh, three lakhs are given by the Centre and rest by the respective state governments. A need for amendment in the compensation provided under the Motor Vehicles Act was also expressed.
There is a need to increase the compensation given to the families of the victims. The amount should be sufficient for them to lead a dignified life. The government should take measures to ensure employment of the dependents and also ensure other necessary help like rehabilitation, medical and psychological treatment.

Freedom of religion and use of loudspeakers

Recently there have been clashes in the state of Uttar Pradesh upon the removal of loudspeakers from a place of worship. It is often claimed that such actions of the State effect the right to practice one's religion. While the Constitution of India gives the freedom to practice one's religion, it also lays down certain reasonable restrictions upon the same.
Article 24 provides that: (1) Subject to public order, morality and health and to the other provisions of this Part, all persons are equally entitled to freedom of conscience and the right freely to profess, practise and propagate religion.
The restrictions on the ground of public order, morality and health have been laid down on one's right of freedom to practice to practice religion.
Another question that whether the use of loudspeakers is an integral part of practicing one's religion, so the question has been dealt with by the Supreme Court in the case of Church of God (full gospel) in India v KKR Majestic Society Welfare Association that the use of loudspeakers is not an integral part of any religion. The court had further stated that no community can claim a right to cause noise pollution in the name of religion.
Thus, neither is the freedom of religion absolute in itself nor the use of loudspeakers an indispensable part of any religious practice that cannot be stopped for the greater good.

Shariat courts

The Supreme Court has recently passed a judgement that shariat courts cannot pass orders infringing Human rights and in matters of criminal justice. India has a uniform criminal law that does not discriminate on the basis of religion, caste, class, and treats all citizens as equal. Shariat courts act as a parallel judicial system and are against the constitutional provisions dealing with the judicial system. The judgement is important as it is a measure to prevent Human rights violation and prevents multiple actions for the same cause.
The judgement is also important in the light of the recent events of rapes being ordered by the village panchayat as a means of revenge. No body except for those established by the Constitution can pass a judicial decree that effects the rights and liberties of any citizen. And even these are bound by the 'due process' and must follow the principles of natural justice.

Compensatory jurisprudence

From 'where there is a remedy, there is a right' to 'where there is a right, there is remedy', the courts have expanded the scope of justice to a very wide sphere. Earlier the courts were concerned with just providing remedy for the breach of duty as arising in the civil cases or providing punishment for criminal acts. The damages provided, whether liquidated or unliquidated, were rarely compensatory in nature, specially if the breach was committed by the State, which had the defense of performing the 'sovereign function'. The law courts have now extended their powers in cases of gross violations of human rights to provide compensation to the victims. Starting from the case of Rudul Shah, the Supreme Court of India has started providing compensatory remedies to the victims of violation of Article 21. The Supreme Court has used its powers under Article 32 to provide adequate protection to the life and personal liberty guaranteed under Article 21, even though there is no express provision for the same. Whenever the rights guaranteed by Article 21 are violated by the State action, it is essential that the same is rectified and compensated so as to make a sense of the guarantee that has been given under its provisions. The courts have extended the tortious liability of the State to include all violations of life and personal liberty that are not in accordance with the procedure established by law. Custodial violence, custodial death, illegal detention, environmental pollution, etc. are few of the instances for which compensation may be provided, the quantum of compensation depending on case to case. However, the courts need to exercise certain caution as well to see that it does not overstep its limitations in the name of judicial activism.

Child molestation

Every child has a right to lead a happy, healthy and productive life. Molestation, whether physical, mental, sexual or economic, robs from a child, his childhood. Child sexual molestation or pedophilia is emerging as one of the biggest problems in recent times. With its impact upon the physical and mental health of the child, sexual molestation has the potential to destroy the coming generations. The cause is unknown as often the child molested is as young as 3 or 4 years of age and is invariably left in a battered state, except that the offender has a perverted mind and needs some sort of psychological treatment. Many children fail to survive the attack, their bodies being too small to bear the harm done to it. Those who survive, are scarred for life. Most of the times, the perpetrators are either family members or friends of family or neighbors, putting a question on what region qualifies as a safe zone for the child. The desire to harm a child in itself is very barbaric in nature. Is it the helplessness of the victim or the desperation of the offender or his desire to express his strength over the weakness of his victim, the root cause, needs to be studied. Another aspect of the problem is that many a times, the child is incapable of informing who has molested him either because of immaturity of age and understanding or else is too scared to name the person involved. If the offender is close to the family, he can even 'bribe' the child to keep mum. And all these facts taken together make it difficult for the law enforcing agencies in taking necessary action against the offender. But one thing is sure, parents need to be extra vigilant and not trust anyone with their child's custody. Also children must be taught as early as possible that nobody is allowed to touch them and if somebody approaches them, they should inform it to their parents or guardians immediately. Parents, guardians and teachers should also listen carefully all the complaints made by the child. Furthermore, stricter laws, both at national and international levels and their implementation needs to be in place to curb this heinous crime.

Adoption under Muslim Law

In a recent landmark judgment by the Apex Court, Shabnam Hashmi v Union of India (civil writ petition #470 of 2005), the court has held that the provisions of the Juvenile Justice Act,2000, shall supersede the personal laws and any Muslim couple wanting to adopt, can adopt under the provisions of the secular law. Though the court refused to make the right to adopt a fundamental right, it observed that till the uniform civil code comes into existence, the law of the land shall prevail over the personal laws.

Though the Muslim law does not provide for adoption, there are provisions for looking after orphans (kafala) and guardianship whereby, a child in need can be taken care of. In fact, the religion enjoins Muslims to take care of orphans and safeguard their person and property. However, in such cases, the child or ward remains to be a part of his biological family only and does not become equivalent to the biological children of the person taking care of him. He does not have the legal status of an adoptive child that equates him as a biological member of the adoptive family and ends all ties from his biological family.

The Supreme Court's latest judgment will come as a relief for many childless Muslim couples who want to adopt but could not because of the legal restraints. The provisions of the Juvenile Justice Act are secular and enabling in nature and any person wanting to be governed by it can chose the same. It is a personal choice whether a person will go for adoption under this law or decide to adhere to the personal laws. However, for those wanting to adopt, the ruling removes the existing disabilities.

Deviance

A man living all alone can do whatever he wants to do and however he wants to do, however, when he starts living in a group, he is expected to follow certain set patterns of life. Society expects a man to act in a certain fashion. When a person fails to conform to those set norms, he is said to be deviating from the right path. Acts of deviance may be minor in nature or more serious ones to be branded as crimes. Sociologists have put forward a number of theories to understand and explain why these acts of deviance occur.
Emily Durkheim- Durkheim was of the opinion that crime is essential in a society. He explained deviance in sociological-functional manner. He said that the act of deviance serves a number of functions such as:-
(1) deviance affirms social norms and values. Acts of deviance help in understanding what acts are acceptable in the society and what are not.
(2) deviance help set moral boundaries
(3) repeated acts of deviance bring together the various sections of society to take a collective action against them. They help in formulation of new rules and policies.
(4) deviance brings about social change and expand moral boundaries. Acts that were once taboo get accepted by the society.
Merton- strain theory. According to Merton, the gap between a man's goals and aspirations and the legitimate means to attaining them leads to acts of deviance. When a man has aspirations that are beyond his capacity of legitimate labor, he tends to resort to unlawful means of attaining them.
Sutherland's differential association theory- according to Sutherland, associating with persons of deviant nature tends to have an impact on the behaviour of a person. He was of the opinion that deviant behavioural pattern is learnt and is dependent upon the nature and degree of association, duration of association, influence of the person and so on.
Labeling theory- according to Frank Tannenbaum and Howard S Becker, labeling of a person as deviant makes him deviant. They said that deviance is in two stages- primary deviance, where a person is labeled as deviant by his peer group and secondary deviance, where the person after getting frustrated with the label actually commits the acts that he is branded for.
Control theory- according to this theory, weak bonds between the individual and the society lead to acts of deviance. Where the social control machinery is weak, it is easier for inividuals to break the norms of the society.
Biological theory- according to Cesare Lombroso, criminals are born criminals. He was of the opinion that the individuals with deviant tendencies have certain physical abnormalities or deformities. The acts of deviance are a result of the inferiority caused by the abnormal physical features in a person's body.
Economic theory- according to Karl Marx, the capitalist society is responsible for acts of deviance. The difference between the income groups, the haves and the have-nots, the unequal distribution of resources and income is the reason behind the various acts of deviance. The poorer section of the society resorts to acts of violence to bring about equality in distribution of income. Mob violence and vandalism can be explained by it but not the cases of white collar crimes.
Thus, a number of theories have been put forward to explain the acts of crime and deviance. Deviance is a social phenomenon requiring a preventive action against it. Understanding its causes plays an important role in controlling it.