Same sex marriages in India

Introduction
While talking about legitimating same sex marriage, I am reminded of a story of a washer man and his donkey. The donkey refused to move with the heavy bundle of clothes on his back from his house to the pond. The washer man nailed a carrot to a stick, which was tied in front of the animal's mouth. The donkey kept on moving with a view to cat the priced vegetable - the ass goes on and the carrot is un-reached. In the field of jurisprudence this shows how some laws the proverbial ass, pursue, perpetually, the carrot of the moral ideal.Is it not time we woke up to the reality, that homosexuals are as normal as you and me. According to some study, about at least 5-10% of population is gay. You can calculate and see what the figure is for India. Even if it is not that high a figure, we know that it is a quite common phenomenon. Its not good in the Indian society but its is a pshchological phenomenan, you can not help it. An increasing number of gay groups through out the country and serious thinking among them is seen in India in the last few years. Whether same sex marriage should be legalized is more of a religious debate then a political one. While I believe that marriage is a sacred union between man and woman, I also believe that our country was founded on the principle that everybody has the right to the pursuit of happiness. And if a man marrying a man or a woman marrying a woman makes them happy then I think it's okay. I do not believe it affects anyone negatively.

History:
Homosexuality has an ancient history in India. Ancient texts like Rig-Veda which dates back around 1500 BC and sculptures and vestiges depict sexual acts between women as revelations of a feminine world where sexuality was based on pleasure and fertility . The description of homosexual acts in the Kamasutra, the Harems of young boys kept by Muslim Nawabs and Hindu Aristocrats, male homosexuality in the Medieval Muslim history, evidences of sodomy in the Tantric rituals are some historical evidences of same-sex relationships

However, these experiences started losing their significance with the advent of Vedic Brahmanism and, later on, of British Colonialism. Giti claims that Aryan invasion dating to 1500 B.C began to suppress homosexuality through the emerging dominance of patriarchy . In the Manusmriti there are references to punishments like loss of caste, heavy monetary fines and strokes of the whip for gay and lesbian behavior. In the case of married women, it is mentioned that 'luring of maids' is to be punished by shaving the women bald, cutting of two fingers and then parading her on a donkey. Manu's specifications of more severe punishments for married women can suggest either a wide prevalence of such relationships among married women or a greater acceptance of these practices among unmarried women. In either cases, these references point to the tensions in the norms of compulsory heterosexuality prescribed by Brahmanical0 partite. Both sexual systems coexisted, despite fluctuations in relative repression and freedom, until British Colonialism when the destruction of images of homosexual expression and sexual expression in general became more systematic and blatant.

The homophobic and Victorian puritanical values regarded the display of explicit sexual images as 'pornographic and evil'. The Western view, since the time of Colonial expansion, has been strongly influenced by reproductive assumption about sexuality. These puritanical values and attitudes were in turn mapped into the interpretation of sexual activity among colonial people which is evident from the responses to all forms of 'unnatural' sexual practices. The Indian psyche accepted the Western 'moral and psychological' idea of sexuality being 'pathological' rather than the natural expression of desire, which once used to be part of Indian
culture.

The last century witnessed major changes in the conception of homosexuality. Since 1974, homosexuality ceased to be considered an abnormal behaviour and was removed from the classification of mental disorder. It was also de-criminalized in different countries. Since then various states across the globe enacted anti-discriminatory or equal opportunity laws and policies to protect the rights of gays and lesbians. In 1994, South Africa became the first nation to constitutionally safeguard the rights of lesbians and gays. Canada, France, Luxembourg, Holland, Slovenia, Spain, Norway, Denmark, Sweden and New Zealand also have similar laws. In 1996, the US Supreme Court ordered that no state could pass legislation that discriminated against homosexuals. In India, so far no such progressive changes have taken place and the homosexuals remain victims of violence in different forms
supported by the state and society.

The issue of homosexual conduct has come to this fore in recent legal and political debates for three main reasons:
(I). Liberalization of the law (in the U.K., by the Sexual Offences Act 1967 as amended in 2000 and some other countries by a similar legislation) has brought with it a change in social attitudes, so that the stigma attached to the homosexuality has to a greater extent disappeared.

(II). Campaigns for lesbian and gay rights especially in the U.S. have taken on an increasingly radical character, arguing for an end to all forms of discrimination against homosexuality, and even for the legalization of same sex marriages.

(III). The outbreak of HIV/AIDS which has been spread in western countries to a great extent by homosexual activity between males, has led to accusations and counter-accusations, often of a bitter kind. Spain, Belgium and the Netherlands, as well as Canada in allowing same-sex marriages. Same-sex acts are punishable by death in nine countries around the world.

Arguments by those who don't want it to be legalized:
This is more of a religious debate then a political one. Large number of people specially in India are opposing it, as they say it is unnatural, uncouth and immoral. Prime Minister Mr. Manmohan Singh on asking what did he think about the Canadian law of homosexual marriages he replied it is not appreciated. Those people who are opposing it their arguments are based on religious and natural law belief. Some people don't consider them as natural because they do not produce kids. Is it sacred if gay marriage is allowed God created Adam and Eve, we never find statements in Genesis about Adam and Steve. Why break God's law by allowing gay marriage If nature wanted same-sex people to live together, there would only be one sex rather than different sexes. Our society is based on opposite sex marriage. If gay marriage is OK, then why can't I marry my cousin, or my sister, or my cat. Don't I have the same rights as gays or are they now above the rest of us. Don't forget that the law is specific on this. It was created to keep the fabric of society together. It goes against the laws of the land that have been used for hundreds of years and were based on the basis of the commandments.

How Law Deals With It In India:
There is no explicit mention of homosexuality or hemophilia in any of the statute books of India. A person cannot be prosecuted for being a homosexual or hemophilic. But the sexual act of sodomy is a criminal offence. The major provisions of criminalisation of same-sex acts if found in the Section 377 of the Indian Penal Code (IPC) of 1860.

Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal shall be punished with imprisonment of either description for a term which may extend to ten years and should also be liable to fine.

The offence of homosexuality is read under this section as an Unnatural Offence. The term Carnal Intercourse used in this section refers to sexual intercourse between men or in other words, homosexual relationships. Section 377 of the Indian Penal Code, was enacted by the British in 1860.

The Indian law against homosexuality seems to be too harsh. The Constitutional validity of section-377 of IPC was challenged in the Delhi High Court as being violative of fundamental rights guaranteed under the Indian Constitution. Here it may be noted that, in practically all crimes against human body listed under the Indian Penal Code, some sort of physical violence or coercion is an essential element of crime. The only exception is in the favour of section-377, which criminalizes sexual activity that leaves no victims. In the history of the statute from, 1860 in 1992 there was only 30 cases in the High Courts and Supreme Court . " The small number of cases filed under this section shows that this section is redundant and outdated and needs to be repealed

The Central Government has informed the Delhi High Court that homosexuality cannot be legalized in India as the Indian society is intolerant to the practice of homosexuality/lesbianism. To paraphrase, three things can be said about the government's stance:

[a] the state has not just a function to, but actually a duty to stop unnatural sex, or else the social order would break down, law loose its legitimacy et al;

[b] that our society does not tolerate homosexuality, and notwithstanding the universality of human rights or the universal applicability of our fundamental rights and freedoms, its criminalization is therefore justified; and

[c] that it is really not our thing, its something that happens out there in the west, we do not have to copy that. In other words the three pillars of the classic culture arguments to criminalize the likes of us.

Why Should Be Legalized:
Arguments in favour of Decriminalizing Homosexuality: Gay and lesbian rights activists from various parts of the countries were protesting for their rights and for decriminalizing the homosexual conduct. There is a big debate in our country too- whether it should be legalized or not. I am giving some of the arguments in favour of decriminalizing it, specifically in Indian context- in view of Section-377 of the Indian Penal Code.

(1). It violates right to liberty guaranteed under Article-21 of the Indian Constitution, which covers private consensual sexual relations. The fundamental right to liberty (under Article-21) prohibits the state from interfering with the private personal activities of the individual

. The concept of privacy is so broad that no comprehensive and all encompassing definition of the term can be given. In the case National Coalition for Gay and Lesbian equality V. Ministry of Justice , the South African court held that, Privacy recognizes that we all have a right to a sphere of private intimacy and autonomy which allows us to establish and nurture human relationships without interference from the outside community. Even at the international level, the right to privacy has been recognized in the favour of lesbians and gay man.

(2). Criminalization of homosexual conduct is unreasonable and arbitrary:
Infringement of, the right to equal protection before law requires the determination of whether there is a rational and objective basis to the classification introduced. There should be a just and reasonable nexus between the classification and the object sought to be achieved by the legislation. Section-377 of IPC, its legislative objective is to criminalize all the sexual activities which are against the order of nature, thus punishing the unnatural sex. Section-377 assumes that natural sexual act is that which is performed for procreation. Hence, it thereby labels all forms of non-procreative sexual act as unnatural. This gives a very narrow view to the distinction between the procreative and non-procreative sexual act. Hence, the legislative intent of creating a public code of sexual morality has no rational nexus with the classification created. Further the very object of the section is vague, unreasonable, arbitrary and based up on the stereotyped notion that sex is only for procreation. Now if this presumption is accepted is correct then, what justifies the policies of family planning and the use of the contraceptive devices

(3). Section-377 discriminates on the basis of sexual orientation:
forbidden under Article-15 of the Constitution. Article-15 prohibits discrimination on several grounds, which includes Sex. By prohibiting discrimination on the basis of sex, article-15 establishes that there is no standard behavioral pattern attached to the gender. The prohibition on non-procreative sexual acts imposed by section-377 prescribes traditional sexual relations upon men and women. In so doing the provision discriminates against the homosexuals on the basis of their sexuality and therefore constitutes discrimination on the basis of sexual orientation.

(4). Section-377 violates the enjoyment of civil laws and gay men and lesbians and leads to other adverse effects: Section-292 of IPC punishes Obscenity; the current definition of obscenity can lead it to incriminate the gay and lesbian writings. As male homosexuality is a criminal offence, the presumption is that it is something depraved and can corrupt the minds and bodies of the persons. In the prevailing atmosphere any writing about the lesbians and the gay men can be criminalized, as homosexuality is treated as something immoral or depraved. The workman's Compensation Act, 1923- provides that in case of death caused by injury at the work place, the dependents of the employee are entitled to receive the compensation from the employer, the dependents will include a widow, minor legitimate son, unmarried daughter, widowed mother and an infirm son or daughter.

Thus a gay or a lesbian couple cannot claim the benefits under this section. This is not an isolated example and there are other such Acts that are discriminatory towards homosexuals. The Provident Fund Scheme, 1952 and the Payment Of Gratuity Act, 1972 define family in such away that a lesbian or gay couple. I end this issue with a quote ?There are several sections in the Indian Penal Code which are anachronistic in a changed world. Section 377 is a prime example. As a matter of fact, Section 377 as it stands, would have made what Clinton did to Monica Lewinsky or rather what Monica Lewinsky provided to Clinton, an offence. I am being discreet, because after all, some things can only be dealt with orally and cannot be put down on paper! The crucial words are "against the order of nature." The possibilities are immense and the imagination can well run riot. Perhaps the way out is now to argue that nature and its various orders have themselves changed.

Why There Is Need For Legal Recognition:
A recent study of sexual practices in rural India by the United Nations Population Fund (UNFPA) found that `male-to-male sex is not uncommon. In fact a higher percentage of men in the study reported having male-to-male sex than sex with sex workers. This was true of both married as well as unmarried men. Close to 10 per cent unmarried men and 3 per cent married men reported having had sexual intercourse with other men in the past 12 months." The survey covered 50 villages in five districts of five states with feedback on sexual practices from close to 3,000 respondents and in- depth interviews on intimate habits from 250 people. The data is indicative of a reality the government is either unable or unwilling to see.

Love is love. The real threat to marriage is the alarmingly high divorce rate. Marriage is also a legal joining of two individuals. People who are not religious choose to get married in a registry office and not in church. Marriage shows the strongest commitment you can make to one another. Gay men and lesbians are just as human and have the same needs and desires as heterosexual human beings. I fail to see what God has to do with this Marriage in this instance is not religious, but a legal joining. Getting married is the ultimate way of showing your love and commitment to your partner, so why should gay people be deprived of this right. Who are we to sit and judge anyway. Same sex marriages should be legalized. If people find gay relationships contrary to their religion, it is up to them to refrain. Those who do not share their religious opinions should be free to make their own choice on this as on other issues. Gay men and lesbians are just as human and have the same needs and desires as heterosexual human beings.

The argument that same sex marriages should not be made legal "because they do not produce kids" is ridiculous. Should heterosexual couples over 50 not be allowed to marry as they cannot produce kids either? If two people love each other and want to unite their destinies, then it is a beautiful thing which should be celebrated. Whether it is called "marriage" or "life pact" does not matter. Same-sex unions harm no one; one's support or opposition to this is a matter of personal belief and morality, with which the government has no business to interfere.

The universality of Human rights demands that prevailing and dominant cultural and social norms cannot be invoked in a manner as to circumvent or restrain fundamental and constitutional rights. If we were to accept the government's arguments in the Delhi high court case, then many of the progressive legislations in my country would never have been enacted. For example, even today there are many men who think that tradition gives them a right to beat up their wives, or that they deserve to get a very fat dowry just because they were born with a penis. If we give in to these cultural beliefs, then there is nothing to turn round the legislations that we have made to stop violence against women or dowry and dowry related deaths.

Conclusion
On the basis of the whole discussion on the aspect of same sex marriage that is Should it be legalized or not. This is more of a religious debate then a political one. In which I have given my arguments in favour of decriminalizing it, I finally conclude by saying that homosexuality is not an offence, it is just a way of pursuit of happiness, a way to achieve sexual happiness or desire. I can see absolutely no reason, apart from blind prejudice, which prevents two gay people going through a civil ceremony which will give them the rights and securities which heterosexual couples enjoy. Marriage is a sign of commitment and love. If two men or two women want to show that commitment, how does that destroy or damage the ideals of marriage. In my view, it clearly demonstrates it. Aren't we living in an age which respects the individual's right to choose Isn't India supposed to be the land of the free In our society people have branded homosexuals as queer. Yet homosexuality is not new nor is it against the Indian culture, it has always existed and with much lesser prosecution, that under Section-377 of the IPC, which is based on British Offences against the Persons Act.

What should be the right approach to deal with same sex marriages, the issues are quite vast and complex. However, the desirability and feasibility of such an approach remain to be ascertained. In any event there is a growing conviction that our present method of criminalizing the same sex sexual activity neither helps the homosexuals nor protects the society in general. We thus need to legitimate same sex marriages in order to move forward in the direction of human rights.

Bride burning laws in India

Introduction
Today, Indian society is surrounded with many problems such as unemployment, illiteracy, population growth, terrorism, etc. Among these problems, a problem which is deep rooted in Indian society is the problem of dowry system. It has become the every day news item, no day passes away when we don't hear news relating to dowry death or dowry harassment. The irony lies in the fact that women in India are worshipped in the form of shakti, she is burned and harassed by her in-laws every day in one part of the nation or the other. Dowry, in ordinary sense, refers to money, gifts, goods or estate that wife brings to her husband in marriage.

The dowry has a long history in Europe, South Asia, Africa and other parts of the world. The system of dowry is deep rooted in the Indian society since the early days of the history. This system prevailed in ancient Indian society, in ancient period dowry was the part of the ritual of kanyadan which was very different from modern- dowry. Among the eight types of marriages recognized by smritis, it was only in the Brahma marriage that father gave away his daughter, with such gifts and presents as he could afford, to a man of superior character .In the medieval period, the dowry, which was earlier regarded as dakshina (gift offered willingly), became an evil, father in order to marry her daughter had to offer money demanded by groom's family. In medieval times, the dowry system had engulfed the society at alarming rate, though it was practiced in the aristocratic and royal families.

The extra ordinary pride which rich people took in their ancestry was mainly responsible for this development. The youth of the bluest blood were preferred as sons-in-law by a large member of peoples, as a consequence of which their value increased in the market . The evil, which targeted the aristocratic and royal families in the ancient and the medieval period, in the British and modern period it engulfed the entire society. In the present era, it is in the most disastrous form. Women are harassed, beaten and face every kind of cruelty if she is unable to fulfill the demand of dowry and the harassment goes to such an extent that they are burned to death.

The most glaring example is of a lady Pooja Chauhan, who was so harassed by her-in laws because of dowry, which compelled her to parade in semi nude condition on the road of Rajkot to seek the justice. While greed may be the apparent causes for dowry demands some more suitable and unconscious motivations could also motivates this evil system such as:
1. Aspiration to marry in the High and Rich family.
2. Pressure of the caste system.
3. Social Custom
4. Marriage system.
5. False notion of social status and
6. Vicious Circle.

Anti- Dowry Laws:
The attempt to eradicate the evil system of dowry through the mechanism of the law dates as far back the Sindh Leti Deti Act of 1939. After independence of India only two states, namely, Bihar and Andhra Pradesh enacted legislation restraining the dowry system. But as the incidence of dowry ascended at high rate, need for the central legislation became essential and as a result, the first national anti-dowry legislation popularly known as the Dowry Prohibition Act was passed in 1961, and this Act applies to all the communities in India. However, the Act proved quite ineffective, which demanded changes in this toothless piece of legislation. With a view to remedy the inherent weakness of the Dowry Prohibition Act, this Act was amended in the year 1984 and again in the year 1986 to make the provisions of the Act more stringent and stricter than before and also to make its implementation effective. Law Commission 91st report 1983, recommended certain several provisions in IPC, Cr. PC and Indian Evidence Act to combat this social evil.

In IPC section 498-A was added which made cruelty by the husband or his relatives punishable with imprisonment up to three years and sections 304-B was added to the IPC by Criminal Law Amendment Act, passed in 1986 which provides that where the death of a woman is caused by any burns or bodily or occurs otherwise than under normal circumstances within seven years of her marriage and it is shown that immediately before her death she was harassed and put to cruelty by her husband or any relative of the husband in connection with demand for dowry, such death shall be called as dowry death; and sub-section (2) provides punishment with a minimum of seven years which may extend to imprisonment for life. Section 174 and 176 of CrPC, deals with the investigations and inquires into the causes of unnatural deaths, by the police and magistrate respectively.

The Amendment Act 1983 makes it mandatory for the police officer to send the body for post-mortem examination if the death of the woman occurred with in seven years of marriage as a result of suicide or under other suspicious circumstances. A new section 113-B was added in the Indian Evidence Act which deals with the burden of proof in dowry deaths according to which the Court has to presume that a dowry death was caused by the person who is shown to have subjected the woman to cruelty or harassment soon before her death.

Judicial Efforts
Apart from the efforts of legislature, judiciary is also playing a important role in combating and eradicating the evil dowry system from the Indian society. In case of Kundula Bala Subrahmaniam V State of A.P. , the Supreme Court gave some indications in dealing with the case of dowry related violence.

The Apex Court observed that such cases ought to be dealt with in a more realistic manner and criminals should not be allowed to escape on account of procedural technicalities or insignificant lacunae in the evidence and the courts are expected to be sensitive in cases involving crime against women. In case of Stree Atyachar Virodhi Parishad V. Dilip Nathumal Chordia, The supreme Court observed, ' We are referring to these provisions only to emphasize that it is not enough if the legal order with the sanction above moves forward for protection of women and preservation of societal values. The criminal justice system must equally respond to the needs and notions of the society. The investigating agency must display a live concern. The Court must also display greater sensitivity to criminality and avoid on all courts 'soft justice'. In a number of decisions the Supreme Court has shown practical approach in dealing with bride burning cases, some cases are as follows: State (Delhi Admn.) V Laxman Kumar , State of Punjab V. Amarjit Singh , Subrahmanyam V. State of A.P . and Sarojini V State of M.P. , which reflect this approach of the Apex Court.

Rise of Dowry Violence De Spite of Laws:
the legal and judicial efforts to eradicate the evil system of dowry failed to make any remarkable break in alarming rise of this dowry system. The National Crime Records statistics show that there have been over 58,000 incidents of dowry harassment and over 6, 7000 dowry murders in the year 2005, and as per national crime Bureau, in the year 1994- there were 4,935 dowry deaths and 25,946 cases of dowry harassment, this shows that in the sort span of ten years dowry related crimes accelerated at a very high speed. It may be said that approximately 56,000 dowry deaths and more than 40,000 cases of dowry harassment takes place every where. Moreover, cases which occur in privacy of husband's house are much more and go unreported.

Conclusion
The evil system of dowry is still in practice and culturally approved and socially recognized. Dowry is public all condemned but privately followed in practice. The belief that the evil of dowry which is deep rooted in the Indian society can be eradicated by just making laws is no more stands true. The first Prime Minister of India, Late Pandit Nehru, who played an active role in social engineering, had said that, ' Legislation alone cannot eradicate the deep rooted social problem.

The laws enacted to eradicate the evil system of dowry from the society should be supported and backed by the public opinion. If progressive legislations lacks the support of public opinion it is no more than a waste bundle of papers and are regarded as dead law; As is case with the Indian Dowry Prohibition Act, 1961, It must be asserted that a social reform should be done in consonance with social thinking, behaviour and after creation of a strong public opinion, as laws could only be effective when they are hacked by major section of the society. Moreover, law can only catalyze change in social behaviour, but the real change in society can be brought through the creation of new values and aspirations and willingness of the people to change their centuries old attitude. The massive task of social engineering cannot be achieved as long as the centuries old attitude and thinking remains deep rooted in the prevailing society. Apart, from this public awareness through education, media and through other means should be created;

political will and commitment combined with efficient administrative support are need to tackle the problem of dowry social legislations must be backed by the social awareness and must match the letter and spirit of law. As it is rightly said by Pluto, No law or ordinance is mightier than understanding.

Breakdown of Marriages

Introduction:-
Marriage constitutes the very basis of social organization. Hindu law regards marriage as a sacrament- indissoluble and eternal. This sacramental character of marriage has given rise to certain anomalies. The declaration of Manu that neither by sale nor by desertion is wife released from the husband was applied only to women and not men. Thus there was an element of inherent injustice on the wife in Hindu law. To counter such inequalities among spouses and to protect the sacramental aspect of marriage, Hindu Marriage Act, 1955 was enacted which provided certain matrimonial remedies.

Marriage is an institution in the maintenance of which the public at large is deeply interested. It is the foundation of the family and in turn of the society without which no civilization can exist. A marriage solemnized, whether before or after the commencement of the Hindu Marriage Act, 1955 can only be dissolved by a decree of divorce on any of the grounds enumerated in Section 13 of the Act. Till the time a Hindu marriage is dissolved under the Act none of the spouses can contract second marriage. Thus, it is obvious from the various provisions of the Act that the modern Hindu Law strictly enforces monogamy. Even under the Muslim Law plurality of marriage is not unconditionally conferred upon the husband. Muslim law as traditionally interpreted and applied in India permits more than one marriage during the subsistence of one and another though capacity to do justice between co wives in law is condition precedent.

As per the Hindu Law administered by courts in India divorce was not recognized as a means to put an end to marriage, which was always considered to be a sacrament, with only exception where it is recognized by custom. Public policy, good morals and the interests of society were considered to require and ensure that, if at all, severance should be allowed only in the manner and for the reason or cause specified in law.

One of the causes expressly recognized by law is the legal sanction of a valid custom to dissolve a marriage. Thus the rules of dissolution of marriage and monogamy are subject to a valid custom to the contrary. This shows that the law relating to marriage and divorce of Hindus has an inverse relationship with a recognized valid custom.

Divorce Law In India
There was a time when it was believed that the marriages were arranged in heaven, and it used to be a relation of flesh with flesh and bone with bone. So the question of separation from each other was a far cry. But slowly and steadily this concept did not find favour with social reformers, who wanted that a woman must not be chained with a man who is completely devoid of all the virtues that a reasonable husband should have. The British Government frowned upon any effort to make radical changes in the provisions of Hindu Law, although Hindu reformers were agitating for such changes from time to time.

The Hindu Marriage Act, 1955 came into existence, eight years after the independence of the country. Section 13 of the Hindu Marriage Act deals with the grounds on which the parties can seek a decree of divorce from a competent court having jurisdiction to entertain such petition. In the literal sense "divorce" means a legal separation of two persons of the opposite sex who desire to respect and honor each other.

Irretrievable Breakdown Of Marriage
This means the couple can no longer live together as man and wife. Both partners, and one partner, must prove to the court that the marriage broke down so badly that there is no reasonable chance of getting back together.

Till date, the prevailing laws in India regarding the issue of divorce have not recognized a situation where the spouses are facing a situation that despite the fact that they live under the same roof, their marriage is equivalent to a separation. That is, there is still no codified law for irretrievable breakdown of marriage. The Hindu Marriage Act recognize few grounds for dissolution of marriage in Section 13.But with the change in the social mores and in view of the changing nature of marriage in the society, the supreme court has shown special concern over the matter of making irretrievable breakdown of marriage as a ground for divorce. The Supreme Court has with a view to do complete justice and shorten agony of the parties engaged in long drawn battle, directed dissolution of marriage. Indeed, these were exceptional cases, as the law does not specifically provides for the dissolution of marriage on the grounds other then those given in Hindu Marriage Act, 1955. Irretrievable breakdown of marriage is not a ground for divorce under the Hindu Marriage Act, 1955. Because of the change of circumstances and for covering a large number of cases where the marriages are virtually dead and unless this concept is pressed into services, the divorce cannot be granted. Ultimately, it is for the Legislature whether to include irretrievable breakdown of marriage as a ground of divorce or not but in our considered opinion the Legislature must consider irretrievable breakdown of marriage as a ground for grant of divorce under the Hindu Marriage Act, 1955.

Examples of the kind of evidence the court will accept as proof of irretrievable breakdown:
# The couple has not lived together like husband and wife for a period of time.
# One partner had sexual intercourse with somebody else and because of this the other partner finds it impossible to continue living together as husband and wife.
# One partner is in prison after being declared an 'habitual criminal'. (This means he or she keeps committing crimes, and because of this was sentenced to 10-15 years in prison.)
# One partner deserted the other.
# One partner abused the other, for example the husband keeps assaulting the wife.
# One partner is an alcoholic or a drug addict.
# The partners no longer love each other - they may be too different, or they married when they were too young. - One of the partners finds it impossible to live together as husband and wife for any other reason.

. In A. Jayachandra v. Aneel Kaur, the Supreme Court examined such cases. And after discussing the fact concluded thus: When the respondent gives priority to her profession over her husband�s freedom it points unerringly at disharmony, diffusion and disintegration of marital unity, from which the Court can deduce about irretrievable breaking of marriage. The Court found the marriage irretrievably broken down and granted divorce to the husband. This is however very surprising, as many a times in the similar circumstances the court, rather then granting a decree for divorce has ordered for the restitution of conjugal rights holding the notion of a Hindu marriage being sacrosanct as the very foundation of decree for restitution.

The idea behind the declaration of irretrievable breakdown of marriage is also based on the consent as it play a major role in the occurrence of a valid marriage. Since consent is accorded primacy at the time of marriage, it follows that when one or both parties believe that the marriage has broken, they can petition for divorce. When both parties agree the marriage has failed, they can apply for divorce by "mutual consent". When only one of the parties believes that the marriage is failing, it would be enabling for the party to seek divorce arguing that the marriage has broken down, despite the unwillingness of the other party to end the relationship.

However, except in the Islamic law, "irretrievable breakdown of marriage" is not found in any legislation as a specific ground for divorce. There are five central concerns about bringing the ground of irretrievable breakdown of marriage into the divorce statute. These are:

1) Marriage relationship is accorded sanctity in our society, which would be treated with levity if this ground of divorce is available;
2) Divorce carries social stigma, especially to the wife;
3) This ground permits husbands to terminate a marriage relationship at will;
4) This ground could be misused by an errant husband and;
5) That subjective elements exist in the understanding of "irretrievability" and "breakdown".

Recognition of irretrievable breakdown of marriage as a ground for divorce requires to set aside our notions of the sanctity of the marriage relationship. The sanctity that such relationship has arises only from the exceptional sharing and trust that such relationship involves, and cannot be sustained on external notions of unity and obligation. Related to this is the issue of stigma, which we need to overcome and address instead of the dependencies arising out of such relationships. This would matter tremendously in helping the woman regain some measure of confidence.

The last three objections can be dealt with together, by introducing in the ground for irretrievable breakdown, adequate safeguards which introduce objective elements to determine when there is an irretrievable breakdown, and providing for the ancillary issues in the marriage relationship to be resolved as a condition for grant of divorce. This would include financial support to the spouse and children, arrangements on the custody of the children, distribution of the property of the spouses, etc. Where the spouse applying for the divorce has committed a wrong, this could be a factor in determining the maintenance granted to the other spouse. While this ground may seem an attractive and easy option, the introduction of objective factors to determine breakdown will ensure that this ground is not opted for on whim or an impulse.

Why Irretrievable Breakdown?
The theoretical basis for including the irretrievable breakdown of marriage as a ground for divorce is now commonly known among lawyers and jurists. Restricting the ground of divorce to a particular offence or matrimonial disability causes injustice in those cases where the situation is such that although none of the parties is at fault, or the fault is of such a nature that the parties to the marriage do not wish to divulge it, yet there has arisen a situation in which the marriage cannot be worked; that is, where the marriage has all external appearances of marriage but none of the reality. In such circumstances, there is hardly any utility in maintaining the marriage as a fa�ade, when the emotional and other bounds which are the essence of marriage have disappeared. After the marriage has ceased to exist in substance and in reality, there is no reason for denying divorce. In a situation like this, the parties alone can decide whether their mutual relation is emotionally and socially real and strong or not. Divorce should be seen as a solution and a way out of a difficult situation. Such divorce should not be concerned with the wrongs of the pasts, but must focus on bringing the parties and the children to terms with the new situation and developments by working out the most satisfactory basis upon which they may regulate their relation in the changing scenario.

One of the facts from which the irretrievable breakdown can be presumed is, whether the husband and wife have been living apart continuously for a long time. However, living apart should be the only proof of irretrievable breakdown. Thus, it is not enough for the parties to aver that there as been an irretrievable breakdown of marriage. Such an averment must be substantiated and the fact that the parties to a marriage have not lived together for a long period of time can reasonably taken to be a tangible presumptive proof of the breakdown of marriage . In Sandhya Rani v. Kalyanram Narayanan reported in (1994) Supp. 2 SCC 588, this Court reiterated and took the view that since the parties are living separately for the last more than three years, we have no doubt in our mind that the marriage between the parties has irretrievably broken down. There is no chance whatsoever of their coming together. Therefore, the Court in such cases, grant the decree of divorce.

Matrimonial matters are matters of delicate human and emotional relationship. It demands mutual trust, regard, respect, love and affection with sufficient play for reasonable adjustments with the spouse. The relationship has to conform to the social norms as well. The matrimonial conduct has now come to be governed by statute framed, keeping in view such norms and changed social order. It is sought to be controlled in the interest of the individuals as well as in broader perspective, for regulating matrimonial norms for making of a well-knit, healthy and not a disturbed and porous society. The institution of marriage occupies an important place and role to play in the society, in general. Therefore, it would not be appropriate to apply any submission of "irretrievably broken marriage" as a straitjacket formula for grant of relief of divorce. This aspect has to be considered in the background of the other facts and circumstances of the case.

Merits And Demerits Of The Theory Of Irretrievable Breakdown
Before discussing the merits and demerits of the theory of irretrievable breakdown, a question arises, that whether the Hindu Marriage Act can be amended with a view to making irretrievable breakdown of marriage as a good ground for grant of a decree of divorce? In seeking answer to the question we have to bear in mind the changing nature of the family. The family is becoming more democratic and more egalitarian. Both the husband and wife share not only the family house; in some cases they also share the earnings of each other. Because of the rising rate of female activity, the family unit is more of a coalition. It is therefore necessary that if the coalition cannot be worked, the legal sanction for it must be withdrawn.

In answer to the obligation that the ground of irretrievable breakdown of marriage is vague, it may be stated that the petitioner has to satisfy the court of a concrete fact- living apart for a sufficient length of time. Judges have thus to adjudicate on facts (not on some vague concepts) the question whether or not, on the evidence before them, the parties have been living apart for the specified period.

A law of divorce based mainly on fault is inadequate to deal with a broken marriage. Under the faulty theory, guilt has to be proved; divorce courts are presented concrete instances of human behaviour as bring the institution of marriage into disrepute. Because of the divorce of matrimonial offence, judges, and lawyers are sometimes reduced to the role of scavengers. The lawyers have to look for and expose and the judges are confronted with, the worst obscenities within a married life. It is therefore, not surprising that with the present adversary system all types of allegations are freely hurled across the courtroom. We need not stand on an old divorce law which demands that men and women must be found innocent or guilty. It is desirable to get rid o the public washing of dirt linen which takes place in long drawn-out cruelty cases or in cases based on fault. If divorce is allowed to go through on the ground of marriage breakdown, such an unhappy spectacle will be avoided.

One cannot say that it is an enhancement of the respondent for marriage if there are tens of thousands of men and women desperately anxious to regularize their position in the community and they are unable to do so. People should be able to marry again where they can obtain a death certificate in respect of a marriage already long since dead. The objection that irretrievable breakdown as a ground of divorce is vague has been already dealt with. Other objections to it may be dealt with-
a) Irretrievable breakdown allows the spouses, or even one spouse, to terminate the marriage at will, thus transforming marriage from a union for life into one which can be ended at pleasure,

b) It is necessary to the basic principle that no man should be allowed to take advantage of his own wrong; a spouse who was responsible for the breakdown of marriage should not be able to rely on such breakdown in order to obtain a divorce against his or her partner�s will. By authorizing one spouse to divorce the other against the latter�s will after separation for a specific period, the law will have given statutory recognition for the first time to the principle that a person may take advantage of his or her own wrong.

The theory that one cannot take advantage of one�s own wrong has not been adhered to in the Hindu Marriage Act in the past. According to clause (ii) of sub section (1A) of section 13 of the Act, either party to a marriage, whether solemnized before or after the commencement of this Act, may present a petition for the dissolution of the marriage by a decree of divorce on the ground that there has been no restitution of conjugal rights as between the parties to the marriage for a period of one year or afterwards after the passing of a decree for the restitution of conjugal rights in proceedings to which they were parties. This provision clearly contemplates that even the party which has been in the wrong in so far as it has failed to comply with a decree for restitution of conjugal rights can also apply for a decree of divorce on the ground that there has been no restitution of conjugal rights as between the parties to the marriage for a period of one year or upwards after the passing of the decree for restitution of conjugal rights in a proceeding to which they were parties. Such a party, though at fault, would thus be taken advantage of its own fault. It cannot therefore be said that under the provision of the Hindu Marriage Act, as they stand at present, no person can be allowed to take advantage of his own wrong.

Thus, once the marriage has broken down beyond repair, it would be unrealistic for the law not to take notice of that fact, and it would be harmful to society and injurious to the interests of the parties if the legal bond is sought to be maintained notwithstanding the disappearance of the emotional substratum. Such a course would encourage continuous bickering perpetual bitterness, and may often lead to immorality. Where there has been a long period of continuous separation, it may fairly be surmised that the matrimonial bond is beyond repair. The marriage becomes a fiction, though supported by a legal tie. By refusing to sever that tie the law in such cases does not serve the sanctity of marriage; on the contrary, it shows scant regard for the feelings and emotions of the parties.

Public interests demands not only that the married status should, as far as possible, as log as possible, and whenever possible, be maintained, but also that the court should be empowered to declare defunct de jure what is already defunct de jacto, where a marriage has been wrecked beyond the hope of salvage, public interest lies in the recognition of that fact. To keep the sham is obviously conducive to immorality and potentially more prejudicial to the public interest than dissolution of the marriage bond.

Since there is no acceptable way in which a spouse can be compelled to resume life with the consort, nothing is gained by trying to keep the parties tied for ever to a marriage that in fact has ceased to exit. Marriage is life long cohabitation in the home. When the prospect of continuing cohabitation has ceased, the legal tie should be dissolved.

71st Report Of The Law Commission Of India (1978)
The Law Commission in its 71st report, submitted in 1978, dealt with the concept of irretrievable breakdown of marriage. The report deals with an important question concerning the Hindu Marriage Act, 1955, whether irretrievable breakdown of marriage can be made a ground for divorce under that Act and if so, to what extent and subject to what conditions?

The Report mentions that as far back as 1920, New Zealand was the first of the Commonwealth countries to introduce the provision that a three-year or more separation agreement was grounds for filing a petition in the courts for divorce. In 1921, in the first case of the granting of divorce on these grounds in New Zealand, the court laid down that when matrimonial relations have, in fact, ceased to exist it is not in the interests of the parties or in the interest of the public to keep a man and woman bound as husband and wife in law. In the event of such a separation, the essential purpose of marriage is frustrated and its further continuance is not merely useless but mischievous. This formulation has become a classic enunciation of the breakdown principle in matrimonial law.

The Law Commission observed that restricting divorce to matrimonial disability results in an injustice in cases where neither party is at fault, or if the fault is of such a nature that the parties do not wish to divulge it and yet the marriage cannot be worked out. It refers to a situation where the emotional and other bonds, which are the essence of marriage, have disappeared and only a fa�ade remains. The commission concludes that where a marriage has ceased to exist both in substance and in reality, divorce should be seen as a solution and an escape route out of a difficult situation. Such a divorce should be concerned with bringing the parties and the children to terms with the new situation and working out a satisfactory basis for regulating relationships in the changed circumstances. Not to dwell on the �wrongs� of the past.

Fault Theory V. Breakdown Theory
In most of the cases, the question confronted by the Hon�ble Supreme Court is should divorce be granted solely on the basis of who is �at fault�? Or should �irretrievable breakdown� of a marriage be cause for divorce?

The Hindu Marriage Act governing marriages between Hindus, and the Special Marriage Act governing marriage between individuals regardless of religious persuasion, are premised on the �fault� or �matrimonial offence� theory for the purpose of divorce. This, in effect, means that a person can be granted a divorce if, for example, it is established that the spouse has committed adultery, or has treated the person cruelly or deserted for more than two years. Thus the person has been at fault in some way. In addition, the wife can ask for a divorce on grounds that after marriage her husband was guilty of rape, sodomy or bestiality.

Part of the fault theory is that a person cannot take advantage of his/her own wrong. Divorce can only be sought by the hurt or aggrieved party who has been at the receiving end of the other party�s offending conduct. There has been an ongoing debate about whether divorce should be granted solely on the basis of the fault of the party or whether it should be based on the breakdown of marriage. Opinions remain divided among sociologists, lawmakers, reformers and even activists and feminists

Marriage as a sacrament, society�s stake in the continuance of marriage, the duty of judges to effect reconciliation between the parties, and public interest are some of the major factors that feature in this debate. Would introducing irretrievable breakdown as grounds for divorce work against the interests of women, given the gender disparities and large number of women deserted by their husbands?

In the recent case of Naveen Kohli v. Neelu Kohli , the Supreme Court held that situations causing misery should not be allowed to continue indefinitely, and that the dissolution of a marriage that could not be salvaged was in the interests of all concerned. The court concluded that the husband was being mentally, physically and financially harassed by his wife. It held that both husband and wife had allegations of character assassination against them but had failed to prove these allegations. The court observed that although efforts had been made towards an amicable settlement there was no cordiality left between the parties and, therefore, no possibility of reconnecting the chain of marital life between the parties

Criticism
The concept of irretrievable breakdown of marriage to be made a ground for divorce under the Hindu Marriage Act, 1955 has been although a lot more debated but it has equally been criticized at various points by the state High courts and The Government of India. They can be summarized as follows:-

Criticism by the High Court: High Court has in many cases, expressed disagreement with the suggestion that the Hindu Marriage Act, 1955 should be amended with a view to making irretrievable breakdown of marriage as a good ground for grant of a decree of divorce.

The judges of the High Courts have expressed themselves against the introduction of irretrievable breakdown as a ground of divorce. One of the points made in the reply of the High Court is that it is extremely difficult to say that the husband and wife would never live together merely because there has been a rift between them and for the time being it appears that there may not be any prospect of their living together.

The mere fact that there has been a rift between the parties or that they are for the time living apart does not mean that the marriage has come to an end.

t is possible that what may appear to one person to be irretrievable may appear to another as not yet beyond repair. But such a state of things cannot be allowed to continue indefinitely, and there must arrive a point of time when one of the parties should be permitted to seek the judgment of the court as to whether there is or there is not a possibility of the marriage being retrieved.

Criticism by the Govt.: The Government of India, Ministry of Education, Department of Social Welfare, has expressed the review that making irretrievable breakdown of marriage a ground for grant of a decree of divorce is redundant in the light of the fact that sufficient grounds covering �irretrievable breakdown of marriage� exist in the Hindu Marriage Act and the Marriage Laws Amendment Act, 1976, for the purpose of seeking divorced.

Thus we see that though a lot of authorities have deliberated upon the aspect of irretrievable breakdown of marriage as a ground for divorce there has also been a vast majority of authorities that have seen the drawbacks behind this concept of breakdown theory and are not in favor of its legislative birth and implementation.

Conclusion
Thus to conclude, it can be said that marriage is an institution in the maintenance of which the public at large is deeply interested. It is the foundation of the family and in turn of the society without which no civilisation can exist. This foundation presupposes the existence of a platform build on the basis of sound understanding between the spouses. If this understanding is missing between the spouses and the marriage is a continuous malady, then it is desirable that the marriage should be dissolve with the intervention of the court. There is no useful purpose surved by continuing such a marriage. Thus, on the basis of "irretrievable breakdown theory" such marriage should be dissolved for the common betterment of both the spouses.

This is the reason why the attitude of legislature changed from the "guilt theory" to the "divorce by mutual consent" (the consent theory). There may be a case where relation of the parties has broken down irretrievably and there is no chance of reconciliation and they are also not ready for divorce by mutual consent. In that eventuality continuing such relation is futile and as per Irretrievable Breakdown of Marriage theory such marriage should be dissolved. It is high time that we appreciate the need of Irretrievable Breakdown of Marriage theory so that spouses can have a new and better life instead of wasting their "young days" in courts.

Freedom of press in India

Introduction:-
The strength and importance of media in a democracy is well recognized. Article 19(1)(a) of the Indian Constitution, which gives freedom of speech and expression includes within its ambit, freedom of press. The existence of a free, independent and powerful media is the cornerstone of a democracy, especially of a highly mixed society like India. Media is not only a medium to express once feelings, opinions and views, but it is also responsible and instrumental for building opinions and views on various topics of regional, national and international agenda. The pivotal role of the media is its ability to mobilize the thinking process of millions. The increased role of the media in today�s globalized and tech-savvy world was aptly put in the words of Justice Hand of the United States Supreme Court when he said, "The hand that rules the press, the radio , the screen and the far spread magazine, rules the country".

Democracy is the rule of the people. A system which has three strong pillars. But as Indian society today has become somewhat unstable on its 3 legs- the executive, the legislature and the judiciary, the guarantee of Article 19 (1)(a) has given rise to a fourth pillar- media. It plays the role of a conscious keeper, a watchdog of the functionaries of society and attempts to attend to the wrongs in our system, by bringing them to the knowledge of all, hoping for correction. It is indisputable that in many dimensions the unprecedented media revolution has resulted in great gains for the general public. Even the judicial wing of the state has benefited from the ethical and fearless journalism and taken suo motu cognizance of the matters in various cases after relying on their reports and news highlighting grave violations of human rights. The criminal justice system in this country has many lacunae which are used by the rich and powerful to go scot-free. Figures speak for themselves in this case as does the conviction rate in our country which is abysmally low at 4 percent. In such circumstances the media plays a crucial role in not only mobilizing public opinion but bringing to light injustices which most likely would have gone unnoticed otherwise.

However, there are always two sides to a coin. With this increased role and importance attached to the media, the need for its accountability and professionalism in reportage can not be emphasized enough. In a civil society no right to freedom, howsoever invaluable it might be, can be considered absolute, unlimited, or unqualified in all circumstances. The freedom of the media, like any other freedom recognized under the constitution has to be exercised within reasonable boundaries. With great power comes great responsibility. Similarly, the freedom under Article 19(1) (a) is correlative with the duty not to violate any law.

Every institution is liable to be abused, and every liberty, if left unbridled, has the tendency to become a license which would lead to disorder and anarchy. This is the threshold on which we are standing today. Television channels in a bid to increase their TRP ratings are resorting to sensationalized journalism with a view to earn a competitive edge over the others. Sting operations have now become the order of the day. They are a part of the hectic pace at which the media is evolving, carrying with every sting as much promise as risk. However, though technology cannot be thwarted but it has its limits. It can not be denied that it is of practical importance that a precarious balance between the fundamental right to expression and the right to ones privacy be maintained. The second practice which has become more of a daily occurrence now is that of Media trials. Something which was started to show to the public at large the truth about cases has now become a practice interfering dangerously with the justice delivery system. Both are tools frequented by the media. And both highlight the enormous need of what is called �responsible journalism�.

Sting operations vs. Right to privacy:
Television channels have started a series of investigative attempts with hidden cameras and other espionage devices. The advent of miniaturized audio and video technology, specially the pinhole camera technology, enables one to clandestinely make a video/audio recording of a conversation and actions of individuals. Such equipment generally has four components-- the miniaturized camera, often of a size of a 25 paisa coin or even smaller (pin top size), a miniature video recording device, a cord to transmit the signals and a battery cell. The use of the cord can be avoided through wireless transmissions.

In law enforcement, a sting operation is an operation designed to catch a person committing a crime by means of deception. A typical sting will have a law-enforcement officer or cooperative member of the public play a role as criminal partner or potential victim and go along with a suspect's actions to gather evidence of the suspect's wrongdoing. Now the moot question that arises is whether it is for the media to act as the �law enforcement agency�!

The carrying out of a sting operation may be an expression of the right to free press but it caries with it an indomitable duty to respect the privacy of others. The individual who is the subject of a press or television �item� has his or her personality, reputation or career dashed to the ground after the media exposure. He too has a fundamental right to live with dignity and respect and a right to privacy guaranteed to him under Article 21 of the Constitution.

The movement towards the recognition of right to privacy in India started with Kharak Singh v. State of Uttar Pradesh and Others , wherein the apex court observed that it is true that our constitution does not expressly declare a right to privacy as fundamental right, but the said right is an essential ingredient of personal liberty. After an elaborate appraisal of this right in Gobind v. State of Madhya Pradesh and Another , it has been fully incorporated under the umbrella of right to life and personal liberty by the humanistic expansion of the Article 21 of the Constitution.

Today, it is being witnessed that the over-inquisitive media, which is a product of over-commercialization, is severely encroaching the individual�s right to privacy by crossing the boundaries of its freedom. Yet another observation of the court which touched this aspect of violation of right to privacy of the individuals, is found in the judgment of the Andhra Pradesh High Court in Labour Liberation Front v. State of Andhra Pradesh . The Court observed as follows:

14. Once an incident involving prominent person or institution takes place, the media is swinging into action and virtually leaving very little for the prosecution or the Courts to examine the matter. Recently, it has assumed dangerous proportions, to the extent of intruding into the very privacy of individuals. Gross misuse of technological advancements and the unhealthy competition in the field of journalism resulted in obliteration of norms or commitment to the noble profession. The freedom of speech and expression, which is the bedrock of journalism, is subjected to gross misuse. It must not be forgotten that only those who maintain restraint can exercise rights and freedoms effectively.

In Mr. X v. Hospital Z the Supreme Court held that the right to privacy may, apart from contract, also arise out of a particular specific relationship, which may be commercial, matrimonial or even political. Public disclosure of even true private facts may amount to an invasion of the right to privacy.

The following observations of the Supreme Court in R. Rajagopal and Another v. State of Tamil Nadu and Others are true reminiscence of the limits of freedom of press with respect to the right to privacy:

A citizen has a right to safeguard the privacy of his own, his family, marriage, procreation, motherhood, child bearing and education among other matters. Noone can publish anything concerning the above matters without his consent - whether truthful or otherwise and whether laudatory or critical. If he does so, he would be violating the right to privacy of the person concerned and would be liable in an action for damages. Position may, however, be different, if a person voluntarily thrusts himself into controversy or voluntarily invites or raises a controversy.

U.S. law enforcement agencies use sting operations to target any entry point, which is being knowingly used to introduce proceeds of crime into the financial system. Sting operations have therefore been used against such entry points as car dealerships, restaurants, bookmakers, cheque-cashing services, pawnshops, and even churches. The justification for undercover operations generally has been expressed as follows:

Covert investigative techniques are often the most efficient, effective and, in the case of the most virulent strains of criminality, such as organized and major drug related crime, the only practical way of obtaining evidence for the purposes of prosecuting and convicting those responsible

However, former U.S. Chief Justice Earl Warren in Sherman v United States , made an important observation stating that �a line must be drawn between a trap for the unwary innocent and a trap for the unwary criminal.�

On the other hand, the authorities of the United Kingdom have set down a defined and set code for the commission of undercover operations.

The ability to do great good rarely comes without some power to do harm, and the free press is no exception to this general rule. The press should do what it can to minimize the abuse of power (self-scrutiny can help and so can competition), but we should also try to understand with clarity why and how press freedom can enrich human lives, enhance public justice, and even help to promote economic and social development. Technology is being used by the media to throw light upon �truths� which may never have been known to the public at large. However, the use of technology in a rightful manner is what needs to be adequately emphasized upon and proper guidelines be framed for the same.

Media trial vs. Right to free and fair trial:
Trial by media has created a �problem� because it involves a tug of war between two conflicting principles � free press and free trial, in both of which the public are vitally interested. The freedom of the press stems from the right of the public in a democracy to be involved on the issues of the day, which affect them. This is the justification for investigative and campaign journalism.

At the same time, the right to fair trial, i.e., a trial uninfluenced by extraneous pressures is recognized as a basic tenet of justice in India. Provisions aimed at safeguarding this right are contained under the Contempt of Courts Act, 1971 and under Articles 129 and 215 of the Constitution of India. Of particular concern to the media are restrictions which are imposed on the discussion or publication of matters relating to the merits of a case pending before a Court. A journalist may thus be liable for contempt of Court if he publishes anything which might prejudice a �fair trial� or anything which impairs the impartiality of the Court to decide a cause on its merits, whether the proceedings before the Court be a criminal or civil proceeding.

A number of decisions of the U.S Supreme Court confirm the potential dangerous impact the media could have upon trials. In the case of Billie Sol Estes , the U.S. Supreme Court set aside the conviction of a Texas financier for denial of his constitutional rights of due process of law as during the pre-trial hearing extensive and obtrusive television coverage took place. The Court laid down a rule that televising of notorious criminal trials is indeed prohibited by the �due process of law� clause of Amendment Fourteen.

In another case of Dr.Samuel H.Sheppard , the Court held that prejudicial publicity had denied him a fair trial. Referring to the televised trials of Michael Jackson and O.J.Simpson, Justice Michael Kirby stated:

The judiciary which becomes caught up in such entertainment, by the public televising of its process, will struggle (sometimes successfully, sometimes not) to maintain the dignity and justice that is the accused's due. But these are not the media's concerns. Jurists should be in no doubt that the media's concerns are entertainment, money-making and, ultimately, the assertion of the media's power.

In England too, the House of Lords in the celebrated case of Attorney General v. British Broadcasting Corporation has agreed that media trials affect the judges despite the claim of judicial superiority over human frailty and it was observed that a man may not be able to put that which he has seen, heard or read entirely out of his mind and that he may be subconsciously affected by it. The Courts and Tribunals have been specially set up to deal with the cases and they have expertise to decide the matters according to the procedure established by the law. Media�s trial is just like awarding sentence before giving the verdict at the first instance. The court held that it is important to understand that any other authority cannot usurp the functions of the courts in a civilized society.

Similarly there have been a plethora of cases in India on the point. The observations of the Delhi High Court in Bofors Case or Kartongen Kemi Och Forvaltning AB and Ors. v. State through CBI are very much relevant, as the Court weighed in favour of the accused�s right of fair trial while calculating the role of media in streamlining the criminal justice system:

10. It is said and to great extent correctly that through media publicity those who know about the incident may come forward with information, it prevents perjury by placing witnesses under public gaze and it reduces crime through the public expression of disapproval for crime and last but not the least it promotes the public discussion of important issues. All this is done in the interest of freedom of communication and right of information little realizing that right to a fair trial is equally valuable. Such a right has been emphatically recognized by the European Court of Human Rights:

...Again it cannot be excluded that the public becoming accustomed to the regular spectacle of pseudo trials in the news media might in the long run have nefarious consequences for the acceptance of the courts as the proper forum for the settlement of legal disputes.

The ever-increasing tendency to use media while the matter is sub-judice has been frowned down by the courts including the Supreme Court of India on the several occasions. In State of Maharashtra v. Rajendra Jawanmal Gandhi, the Supreme Court observed:

There is procedure established by law governing the conduct of trial of a person accused of an offence. A trial by press, electronic media or public agitation is very antithesis of rule of law. It can well lead to miscarriage of justice. A judge has to guard himself against any such pressure and is to be guided strictly by rules of law. If he finds the person guilty of an offence he is then to address himself to the question of sentence to be awarded to him in accordance with the provisions of law.

The position was most aptly summed up in the words of Justice H.R.Khanna,: -
Certain aspects of a case are so much highlighted by the press that the publicity gives rise to strong public emotions. The inevitable effect of that is to prejudice the case of one party or the other for a fair trial. We must consider the question as to what extent are restraints necessary and have to be exercised by the press with a view to preserving the purity of judicial process. At the same time, we have to guard against another danger. A person cannot, as I said speaking for a Full Bench of the Delhi High Court in 1969, by starting some kind of judicial proceedings in respect of matter of vital public importance stifle all public discussions of that matter on pain of contempt of court. A line to balance the whole thing has to be drawn at some point. It also seems necessary in exercising the power of contempt of court or legislature vis-�-vis the press that no hyper-sensitivity is shown and due account is taken of the proper functioning of a free press in a democratic society. This is vital for ensuring the health of democracy. At the same time the press must also keep in view its responsibility and see that nothing is done as may bring the courts or the legislature into disrepute and make the people lose faith in these institutions.

The Hon�ble Supreme Court in the case of Rajendra Sail v. Madhya Pradesh High Court Bar Association and Others, observed that for rule of law and orderly society, a free responsible press and an independent judiciary are both indispensable and both have to be, therefore, protected. The aim and duty of both is to bring out the truth. And it is well known that the truth is often found in shades of grey. Therefore the role of both can not be but emphasized enough, especially in a �new India�, where the public is becoming more aware and sensitive to its surroundings then ever before. The only way of functioning orderly is to maintain the delicate balance between the two. The country can not function without two of the pillars its people trust the most.