Cannot let Lawyers starve: Kerala HC questions Bar Council of Kerala over delay in implementing GO pertaining to stipend for young lawyers

The petitioners stated that the state govt had issued an order in 2018 which sanctioned a grant of Rs. 5,000 monthly for lawyers with less than three years practice at the Bar and an annual income of less than Rs.1 lakh.

The Kerala High Court on 12/05/2020 questioned the Bar Council of Kerala over the delay in implementing the Kerala government's 2018 order that had sanctioned a monthly stipend of Rs 5,000 to young lawyers in the State. (Adv. Dheeraj Ravi and ors. v. State of Kerala and ors.)

The petitioners' counsel Manu Ramachandran pointed out that the Kerala government had issued an order in 2018 which sanctioned grant of Rs. 5,000 as monthly pension for lawyers with less than three years practice at the Bar and annual income of less than Rs. 1 lakh.

However, even after 2 years, nothing to this effect had been done by the Kerala Bar Council, Ramachandran contended.

Noting this, a Single Judge comprising of Justice Gopinath P orally observed,

"The government order was issued in 2018. We are in 2020 now... Lawyers can't be made to starve."

Kerala High Court

The standing counsel appearing for the Kerala Bar Council informed the Court that they were in the process of framing the relevant rules for sanctioning the stipend for young lawyers.

Further, it was added that the rules framed by them were sent back by the Government of Kerala. The Court was alse told that a statement would be filed by the Bar Council of Kerala on the next date of hearing.

At this juncture, Ramachandran further urged the Court to pass an interim order until the Bar Council frames the relevant rules. However, the Kerala High Court refused to do so. "Let him [counsel appearing for BCK] get instructions on the next date of hearing,", the Court stated.

The High Court also made it clear that no further extension of time would be granted to the Bar Council for filing their statement.

The matter has been next posted for hearing next on May 18.

The petition filed on the issue highlights that no steps have been taken by the Bar Council of Kerala to implement the 2018 government order till date. The petition states,

".. the absence of any stipulation or even prescribed form to apply for the payment of stipend even after more than 2 years of Ext.P2 G.O is nothing but lethargy and arbitrariness on the part of 2nd respondent (Kerala Bar Council) and the same is attributable to respondents 3 to 5 also."

Petition seeking financial assistance for junior lawyers

The plea also points out that certain petitioners had approached Bar Council on several occasions seeking application forms, other procedures and guidance to apply for the monthly stipend pursuant to government order.

However, Bar Council is stated to have asked them to wait till their own Rules and procedure were formulated. Therefore, the petitioners as well as several junior lawyers are left without the benefit of government order till date, the plea states.

The plea further submits that in the light of the COVID-19 lockdown and the closure of Courts, the fraternity of lawyers in India have suffered much, like any other income groups of the society.

The junior lawyers, who are already dependent upon various circumstances and financially vulnerable even before lock-down were the worst affected among the lawyers, the petitioner contends.

Although several measures were declared to help the financially suffering lawyers pursuant to the pressure exerted from various corners, the intended benefit has not reached the lawyers due to the narrow compass of eligibility prescribed therein, the petitioner says.

Therefore, the plea urges the High Court issue directions for ensuring the implementation of the 2018 Kerala Government order in its letter and spirit, within a fixed time frame.

This apart, the plea also prays that the Kerala Bar Council consider and pass orders on all applications seeking monthly stipend, that have complied with the terms of the 2018 Kerala Government order.

Allahabad High Court: A Division Bench of Shashi Kant Gupta and Ajit Kumar, JJ., while addressing a Public Interest Litigation held that,

“Azan may be an essential and integral part of Islam but recitation of Azan through loud­ speakers or other sound amplifying devices cannot be said to be an integral part of the religion, warranting protection of the fundamental right enshrined under Article 25 of the Constitution of India.”

Background

Member of Parliament (Lok Sabha), Afzal Ansari wrote a letter stating that fundamental right to religion of people at Ghazipur may be protected and State Administration may be directed to permit the recitation of Azan by only one person “Muezzin” from respective mosques of District Ghazipur, since it does not violate any of the directives issued in view of COVID-19 containment.

Senior Advocate of Supreme Court of India, Salman Khurshid also approached Allahabad High Court through Advocate Syed Mohd, Fazal to seek permission of recitation of Azan for the Muslims at Farrukhabad, Hathras, Ghazipur as Azan recitation is an integral part of Islam.

With the prayer of similar relief, Senior Advocate S. Wasim A. Qadri also wrote a letter.

In view of the above, a Public Interest Litigation was filed by Afzal Ansari .

Relief sought was that,

Muslims in the Districts Ghazipur and Farrukhabad, may be permitted to recite Azan through “Muezzin”, by using sound amplifying devices and the restrictions imposed by the administration are wholly arbitrary and unconstitutional since they do not, in any way, violate the guidelines issued for the containment of the pandemic.

Further it was submitted that pronouncement of Azan is not a congressional practice but is simply an act of recitation by a single individual which in no manner violates any of the conditions of lockdown.

Petitioner also added that caretaker of the Mosque is usually responsible for the recitation of Azan who resides in the mosque, in other cases person assigned the duty of recitation Azan is the closes available person, in both the stated cases, no violation of lockdown norms would be observed.

Also ban on Azan through sound amplifying devices is a violation of fundamental right under Article 25 of Constitution of India

Azan is integral to religion and in no way undermines the society’s collective response to the pandemic.

-Senior Advocate, Salman Khurshid

Additional Advocate General while appearing on behalf of the State, supported the Counter Affidavit filed by the Government, wherein it was submitted that, Azan is a call for congregation to offer prayers at the Mosque which clearly is a violation of COVID-19 guidelines.

A meeting was also convened by District Magistrate, Ghazipur on 24th march, 2020 which was attended by several religious leaders wherein it was decided that no religious activities will be conducted during the period of lockdown at any public place of worship and no loudspeakers/amplifiers would be used for the said purpose.

“In the new guidelines issued by Government in view of lockdown, it was stated that all religious places/places of worship shall be closed for public. Religious congregation strictly prohibited.”

Further it was submitted that,

During the period of lockdown with cooperation of religious groups no loud speakers/amplifiers have been used during the festivals like Navratri, Ram Navmi, Hanuman Jayanti and Parasu Ram Jayanti. People of different religions have been following the guidelines and no religious activities are being carried out at any religious place of worship or public place, and no loudspeakers have been used since 24.03.2020

Additional Advocate General stated that right contained under Article 25 of the Constitution of India is subject to public order, morality, health and Part III of the Constitution of India. Rule 5 of The Noise Pollution (Regulation and Control) Rules, 2000 also states that a loud speaker or a public address system shall not be used except after obtaining written permission from the authority.

Bench Analysis & Decision

While referred to the decision of Calcutta High Court in Moulana Mufti Syed Mohammed Noorur Rehman Barkati v. State of W.B.,wherein it was held that,

use of microphone and loud­speakers were not an essential and an integral part of Azan.

There is catena of judicial decisions which recognizes the right to live in freedom from noise pollution as a fundamental right protected by Article 21 of the Constitution of India. Noise pollution beyond permissible limit is hazardous which violates the fundamental rights of citizens.

In the Supreme Court decision of Church of God (Full Gospel) in India v. K.K.R. Majestic, (2000) 7 SCC 282, it was held that

“No religion prescribes that prayers should be performed by disturbing the peace of others nor does it preach that they should be through voice amplifiers or beating of drums.”

Court also observed the fact that petitioner’s counsel could not explain why the Azan could not be offered without the use of amplifying devices.

There is no such religious order which prescribes that Azan can be recited only through loud­speakers or by any amplifiers. Azan is certainly an essential and integral part of Islam but use of microphone and loud­speakers is not an essential and an integral part thereof.

Thus, Court for the above also stated that Right to religion by no stretch of imagination, ought to be practised, professed and propagated saying that microphone has become an essential part of the religion.

Azan may be an essential and integral part of Islam but recitation of Azan through loud­speakers or other sound amplifying devices cannot be said to be an integral part of the religion warranting protection of the fundamental right enshrined under Article 25 of the Constitution of India, which is even otherwise subject to public order, morality or health and to other provisions of part III of the Constitution of India.

Another point of significance to be noted is that, until and unless there is a license/permission from the authorities concerned under the Noise Pollution Rules, under no circumstances, Azan can be recited through any sound amplifying devices.

Hence it is ruled that while the right to offer Azan by voice, without the use of sound amplifying devices is a right protected under Article 25 of the Constitution. However, the right to recite Azan though sound amplifying devices is not protected under Article 25, since it is not an integral part of Islam.

Further, the Court stated that,

Azan can be recited by Muezzin from minarets of the Mosques by human voice without using any amplifying device and the administration is directed not to cause hindrance in the same on the pretext of the Guidelines to contain the pandemic­ Covid­-19.

With the above observations, PIL stands disposed of. [Afzal Ansari v. State of U.P., PIL No. 570 of 2020, decided on 15-05-2020]

First Information Report (FIR)

F.I.R

What is F.I.R?

A first information report (FIR) is a document prepared by police organizations in South Asian and Southeast Asian countries including India, and when they receive information about the commission of a cognizable offense,  It generally stems from a complaint lodged with the police by the victim of a cognizable offense or by someone on his or her behalf, but anyone can make such a report either orally or in writing to the police. Police investigation follows most FIRs.

For a non-cognizable offense, an entry in a community service register is made.

Each FIR is important as it sets the process of criminal justice in motion. It is only after the FIR is registered in the police station that the police take up investigation of most types of cases. Anyone who knows about the commission of a cognizable offence, including police officers, can file an FIR

As described in law:

When information about the commission of a cognizable offence is given orally, the police must write it down.
The complainant or supplier of the information has a right to demand that the information recorded by the police be read to him or her.
Once the information has been recorded by the police, it must be signed by the person giving the information.
The complainant can get a free copy of an FIR.
An FIR includes the date, time, place, incident details, and a description of the person(s) involved.

How to File an F.I.R?
Whenever there is any incident, the victim himself reaches to the police station to file the fir or police arrives at the place of the accident. the first information report basically consists of 4 main things which are as follows:-

• How
• Where
• Why
• Infront of Whom

So, these are things which should be keep in mind at the time of reporting the F.I.R.

Format of F.I.R Form 

F.I.R Copy Format

Steps

• After the accident happens soon the person should contact the nearest Police Station.
• Explain the accident in detail 
• Write an F.I.R
• Ask for the F.I.R Copy

The Epidemic Diseases Act, 1897 is a law that was first enacted to tackle deadly plague in Mumbai in former British India. The law is meant for the containment of epidemics by providing special powers that are required for the implementation of containment measures to control the spread of the disease.

The Act has been routinely used to contain various diseases in India such as swine flu, cholera, malaria, and dengue. In 2018, the Act was enforced as cholera began to spread in a region of Gujarat. In 2015, it was used to deal with dengue and malaria in Chandigarh, and in 2009 it was invoked in Pune to combat swine flu. Starting in March 2020, the act is being enforced across India in order to limit the spread of coronavirus disease in 2019.

2019–20 coronavirus pandemic

Following the 2019–20 coronavirus pandemic the Cabinet Secretary of India on 11 March 2020 announced that all states and Union territories should invoke provisions of Section 2 of the Epidemic Diseases Act, 1897


The Epidemic Diseases Act, 1897


ACT NO. 3 OF 1897 1 [ 4th February, 1897.]
An Act to provide for the better prevention of the spread of Dangerous Epidemic Diseases.

WHEREAS it is expedient to provide for the better prevention of the spread of dangerous epidemic disease; It is hereby enacted as follows:-

1 Short title and extent. This Act may be called the Epidemic Diseases Act, 1897 .

 It extends to the whole of India except 3 the territories Part B States.

2A) Powers of Central Government. When the Central Government is satisfied that India or any part thereof is visited by, or threatened with, an outbreak of any dangerous epidemic disease and that the ordinary provisions of the law for the time being in force are insufficient to prevent the outbreak of such disease or the spread thereof, the Central Government may take measures and prescribe regulations for the inspection of any ship or vessel leaving or arriving at any port in ⁵ the territories to which this Act extends] and for such detention thereof, or of any person intending to sail therein, or arriving thereby, as may be necessary.]

3. Penalty. Any person disobeying any regulation or order made under this Act shall be deemed to have committed an offence punishable under section 188 of the Indian Penal Code (45 of 1860 ).

4. Protection to persons acting under Act. No suit or other legal proceeding shall lie against any person for anything done or in good faith intended to be done under this Act

After it was first discovered in China, the new Coronavirus is exploding fast across geographies

infecting a large populace and killing several thousands. State and local governments across the world are curtailing the activities and movements of people in order to stop the spread of coronavirus. During a quarantine measure like curfew or lockdown, the guidelines issued vary from state to state and the legal definitions of these two terms also vary. While a curfew and lockdown will appear similar to each other, they are actually not the same. The Epidemic disease Act,1897 describes that when it can be imposed in a Country.

What is Lockdown?

Lockdown 

Lockdown is the most popular version of a quarantine measure implemented by the authorities during the emergency period or at the pandemic disease. There is no any Legal Procedure for this Order but in the Epidemic Disease Act,1897

Section 2A in The Epidemic Diseases Act, 1897 /2A. 4 Powers of Central Government. When the Central Government is satisfied that India or any part thereof is visited by, or threatened with, an outbreak of any dangerous epidemic disease and that the ordinary provisions of the law for the time being in force are insufficient to prevent the outbreak of such disease or the spread thereof, the Central Government may take measures and prescribe regulations for the inspection of any ship or vessel leaving or arriving at any port in 5 the territories to which this Act extends] and for such detention thereof, or of any person intending to sail therein, or arriving thereby, as may be necessary.]

3. Penalty. Any person disobeying any regulation or order made under this Act shall be deemed to have committed an offence punishable under section 188 of the Indian Penal Code (45 of 1860 ).

4. Protection to persons acting under Act. No suit or other legal proceeding shall lie against any person for anything done or in good faith intended to be done under this Act.

Rights of the Citizens During Lockdown

1. It is Right of every person that he/she can go out to buy the essential commodities, things which are for basic needs, etc.
2. No Police Officers can arrest any individual without any valid reason and not even Beat.
3. Can Sell the Groceries, Medicines, Milk but with due Care And there should be a social distancing
4. People 5 or more are together are allowed
   

Duties of the Citizens During Lockdown

1. The order should be followed by the people given by the authorities 
2. The social distancing should be maintained 
3. Precaution should be taken by the people
4. Don't roam unnecessarily 

What is Curfew?

Section 144 in The Code Of Criminal Procedure, 1973

144. Power to issue order in urgent cases of nuisance of apprehended danger.

(1) In cases where, in the opinion of a District Magistrate, a Sub- divisional Magistrate or any other Executive Magistrate specially empowered by the State Government in this behalf, there is sufficient ground for proceeding under this section and immediate prevention or speedy remedy is desirable, such Magistrate may, by a written order stating the material facts of the case and served in the manner provided by section 134, direct any person to abstain from a certain act or to take certain order with respect to certain property in his possession or under his management, if such Magistrate considers that such direction is likely to prevent, or tends to prevent, obstruction, annoyance or injury to any person lawfully employed, or danger to human life, health or safety, or a disturbance of the public tranquility, or a riot, of an affray.

(2) An order under this section may, in cases of emergency or in cases where the circumstances do not admit of the serving in due time of a notice upon the person against whom the order is directed, be passed ex parte.

(3) An order under this section may be directed to a particular individual, or to persons residing in a particular place or area, or to the public generally when frequenting or visiting a particular place or area.

(4) No order under this section shall remain in force for more than two months from the making thereof: Provided that, if the State Government considers it necessary so to do for preventing danger to human life, health or safety or for preventing a riot or any affray, it may, by notification, direct that an order made by a Magistrate under this section shall remain in force for such further period not exceeding six months from the date on which the order made by the Magistrate would have, but for such order, expired, as it may specify in the said notification.

(5) Any Magistrate may, either on his own motion or on the application of any person aggrieved, rescind or alter any order made under this section, by himself or any Magistrate subordinate to him or by his predecessor- in- office.

(6) The State Government may, either on its own motion or on the application of any person aggrieved, rescind or alter any order made by it under the proviso to sub- section (4).

(7) Where an application under sub- section (5) or sub- section (6) is received, the Magistrate, or the State Government, as the case may be, shall afford to the applicant an early opportunity of appearing before him or it, either in person or by pleader and showing cause against the order; and if the Magistrate or the State Government, as the case may be, rejects the application wholly or in part, he or it shall record in writing the reasons for so doing. D.- Disputes as to immovable property

As per the Section 144 of Crpc No person is allowed to move until there is an order and there should be no movement of Weapons. Not even a single person is allowed to move outside of the house. In this Police officer has the Power to Arrest and can use forceful way to keep the Public at their respective places 

What is NSA,(1980)?

The National Security Act of 1980 is an act of the Indian Parliament promulgated on 23 September, 1980 whose purpose is "to provide for preventive detention in certain cases and for matters connected therewith".The act extends to the whole of India. It Contains 18 sections. This act empowers the Central Government and State Governments to detain a person to prevent him/her from acting in any manner prejudicial to the security of India, the relations of India with foreign countries, the maintenance of public order, or the maintenance of supplies and services essential to the community it is necessary so to do. The act also gives power to the governments to detain a foreigner in a view to regulate his presence or expel from the country. The act was passed in 1980 during the Indira Gandhi Government.

Recently, the National Security Act,1980 Or Rasuka is imposed in various cases in different states of india. recently many offenders are arrested under this law for attacking corona warriors, doctors, nurses, housekeeping staff and security personals.

Let us know in this article, what is the National Security Act (NSA), or Rasuka, when is it imposed and what kind of punishment provisions are there under it?

Under the law, the maximum span for which a person can be detained is 12 months. However, the government can extend it, if it feels so.A person detained under the NSA can be held for ten days without being told the charges against him/her.

Typically, if a person is arrested, then he/she enjoy certain rights bestowed by the Indian Constitution. The person has to be informed of the reason for the arrest. Under Section 50 of the Criminal Procedure Code (CrPC), the person arrested has to be informed. However, in the case of the NSA, the person can be held up to ten days without being informed of the reason.

Sections 56 and 76 of the same penal code guarantee the detained person to be produced before a court within 24 hours. Apart from this, Article 22(1) of the Constitution allows the detainee to seek legal advice from a legal practitioner. However, under the NSA, none of these above mentioned basic rights is permitted to the suspect.

Surprisingly, there is no data available for the number of people slapped with the NSA till this day. The National Crime Records Bureau (NCRB) does not list the number of people booked under it.

History of this Law

The act was passed in 1980 during the Indira Gandhi Government. The National Security Act is not the first law of its kind to be enacted in India. The Defense of India Act of 1915 was amended at the time of the First World War to enable the state to detain a citizen preventively. The Rowlatt Committee, approved after the First World War, recommended that the harsh and repressive I provisions of the Defense of India Act be retained permanently on the statute books. The interesting feature of the Rowlatt Bills was that they empowered the State to detain a citizen without giving the detainee any right to move the law courts, and even the assistance of lawyers was denied to a detainee. The Jallianwalla Bagh tragedy was a direct result of the protest against these Rowlatt Bills.

The Government of India Act, 1935 gave the powers of preventive detention to the State for reasons connected with defense, external affairs, or discharge of functions of the Crown in its relations with the Indian States. The provincial legislatures had the power to formulate laws for reasons connected with the Maintenance of Public Order. When the Constitution of India was enacted, Article 21 guaranteed to every person the right of life and liberty which could not be denied to him without honoring the due procedure established by law. In A.K. Gopalan's case, the Supreme Court distinguished "the procedure established by law" from the "due process of law" saying that any procedure duly enacted would be a "procedure established by law". However, this view now stands reversed in Maneka Gandhi's case where the Supreme Court has held that the "procedure established by law" must also be just, fair and reasonable.

Article 22 of the Constitution laid down the scheme under which a preventive detention law could be enacted. The PD Act 1950 was enacted and it continued to be on the statute book until the Maintenance of Internal Security Act (MISA) was enacted in 1971. The MISA was repealed in 1977. And the only period in the Indian "republic without any preventive detention law was the three year period, beginning with the repeal of MISA in 1977 to the promulgation of the NSA in 1980

About the Law

• The National Security Act of 1980 is an act of the Indian Parliament promulgated on 23 September 1980
• It Contains 18 sections.
• The act extends to the whole of India
• This act empowers the Central Government and State Governments to detain a person to prevent him/her from acting in any manner prejudicial to the security of India, 

Nature of the Law

•  If a person is arrested, then he/she enjoy certain rights bestowed by the Indian Constitution. The person has to be informed of the reason for the arrest. Under Section 50 of the Criminal Procedure Code (CrPC), the person arrested has to be informed. However, in the case of the NSA, the person can be held up to ten days without being informed of the reason.
• Under the law, the maximum span for which a person can be detained is 12 months.
• Sections 56 and 76 of the same penal code guarantee the detained person to be produced before a court within 24 hours. Apart from this, Article 22(1) of the Constitution allows the detainee to seek legal advice from a legal practitioner. However, under the NSA, none of these above mentioned basic rights is permitted to the suspect
• Surprisingly, there is no data available for the number of people slapped with the NSA till this day. The National Crime Records Bureau (NCRB) does not list the number of people booked under it.
  

Empower to this Law

•  The law empowers the center and state government to detain a person to bar him from acting in any matter prejudicial to national security.
• The arrest orders can be issued by the District Magistrate or Commissioner of Police under their respective jurisdiction

Amendments & Punishments

• Any person does serious crime and found liable under this law shall be imprisoned with the of  7 years or fine up to 700000 rupees fine or both
• Any person does crime which may be less serious would be liable under this law which may be imprisoned of 2 years or fine or both

Criticism of the National Security Act (Rasuka)

• The National Crime Records Bureau (NCRB) does not include cases under the NSA in its data because very few FIRs are registered under this law. Therefore, there is no accurate information about the number of arrested persons under this act.
• Under this law, a suspect can be arrested without giving any reason and even he/she is not allowed to hire a lawyer for some time. That is why this law is also compared to the British Rowlatt Act. According to many experts, the state governments have also used NSA as 'Extra-Judicial Power'.

Famous Cases which are booked under the NSA or RASUKA

Chandrashekhar Ravana

• Chandrashekhar Ravana, the founder of 'Bhim Army', was also arrested under 'Rasuka' and kept in jail for a year but released later on.
  

Dr.Kafeel Khan

• Kafeel Khan is a suspended lecturer at the Department of Paediatrics, Baba Raghav Das Medical College, Gorakhpur. Khan did his MBBS and an MD from Kasturba Medical College, Manipal, Karnataka. He joined BRD Medical College and Hospital in 2016 as a permanent commissioned employee.

Tablighi Jamaat

It has been charged on tablighi jamaat that they were hiding in the nizamuddin markaz during the period of lockdown at a period when large have been restricted and also charged with misbehaving to the medical staff

 Lack of moral, wisdom and lack of education,  Creats and brings some evil crimes comes out of the society against the Women And Against the Society, It includes Rape, Sexual Assault, Insult to modesty, Kidnapping, Abducting, Cruelty by Intimate Partner, Dowry Death, Voyeurism, Stalking and many other crimes which are done against the Women. Both rape and adultery are crimes under IPC. Which have been briefly described below- 

History Of Rape :

In ancient time, Rape was considered as a weapon of war. Women were raped by soldiers during war in a country. Women belonging to ethnic groups were impregnated through rape by enemy soldiers and were sometimes raped HIV-infected men. In 1993, military sexual slavery and systematic rape were declared crimes against women by UN.

Rape in India:

In India, Rape is undoubtedly a heinous crime and an issue of great concern. According to National Crime Records Bureau 2013 report, Rape is fourth most common crime against women in India. Madhya Pradesh has highest raw number of rape reports among Indian states, while Jodhpur has highest per capita rape report which followed by Delhi.

 Difference between Rape and Adultery. 

Section 375 of the Indian Penal Code1860 defines Rape-Section 375 in The Indian Penal Code

1[375. Rape.—A man is said to commit “rape” who, except in the case hereinafter excepted, has sexual intercourse with a woman under circumstances falling under any of the six following de­scriptions:—

(First) — Against her will.

(Secondly) —Without her consent.

(Thirdly) — With her consent, when her consent has been obtained by putting her or any person in whom she is interested in fear of death or of hurt.

(Fourthly) —With her consent, when the man knows that he is not her husband, and that her consent is given because she believes that he is another man to whom she is or believes herself to be law­fully married.

(Fifthly) — With her consent, when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupe­fying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent.

(Sixthly) — With or without her consent, when she is under sixteen years of age. Explanation.—Penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape.

(Seventhly) —  When she is unable to communicate consent

[EXPLANATION 1]- For the purpose of this section "vagina" shall also include labia majora

   [EXPLANATION 2]-  Consent means an unequivocal voluntary agreement when the woman by words gestures or any form of verbal or non-verbal communication, communicates willingness to participate in the specific sexual act:

Provides that a woman who does not physically resist to the act of penetration shall not by the reason only of that fact, be regarded as consenting to the sexual activity.

Capital Punishment for Rape:

Punishment in Muslim- dominated countries is instant death. According to a report, the percentage of rape crimes in these countries is low as compare to countries where punishment other than death is granted to rapists.

In India, Capital Punishment is a debatory issue in cases of rape. In Laxman Naik v. State of Orissa, 7 years old girl was sexually assaulted by her uncle, according to Court, the degree of injuries of victim were enough to prove the brutality with which rape and murder were committed and death penalty was awarded to accused

Section 376 in The Indian Penal Code

1[376. Punishment for rape.—

(1) Whoever, except in the cases provided for by sub-section (2), commits rape shall be punished with imprisonment of either description for a term which shall not be less than seven years but which may be for life or for a term which may extend to ten years and shall also be liable to fine unless the women raped is his own wife and is not under twelve years of age, in which cases, he shall be punished with imprisonment of either description for a term which may extend to two years or with fine or with both: Provided that the court may, for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment for a term of less than seven years.

(2) Whoever,—

(a) being a police officer commits rape—

(i) within the limits of the police station to which he is ap­pointed; or

(ii) in the premises of any station house whether or not situated in the police station to which he is appointed; or

(iii) on a woman in his custody or in the custody of a police officer subordinate to him; or

(b) being a public servant, takes advantage of his official position and commits rape on a woman in his custody as such public servant or in the custody of a public servant subordinate to him; or

(c) being on the management or on the staff of a jail, remand home or other place of custody established by or under any law for the time being in force or of a woman’s or children’s insti­tution takes advantage of his official position and commits rape on any inmate of such jail, remand home, place or institution; or

(d) being on the management or on the staff of a hospital, takes advantage of his official position and commits rape on a woman in that hospital; or

(e) commits rape on a woman knowing her to be pregnant; or

(f) commits rape on a woman when she is under twelve years of age; or

(g) commits gang rape, shall be punished with rigorous imprisonment for a term which shall not be less than ten years but which may be for life and shall also be liable to fine: Provided that the Court may, for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment of either description for a term of less than ten years. Explanation 1.—Where a woman is raped by one or more in a group of persons acting in furtherance of their common intention, each of the persons shall be deemed to have committed gang rape within the meaning of this sub-section. Explanation 2.—“Women’s or children’s institution” means an institution, whether called an orphanage or a home for neglected woman or children or a widows’ home or by any other name, which is established and maintained for the reception and care of woman or children. Explanation 3.—“Hospital” means the precincts of the hospital and includes the precincts of any institution for the reception and treatment of persons during convalescence or of persons requiring medical attention or rehabilitation.]

The section 376-A, Punishment for causing death or resulting in persistent vegitative state of victim & 376-B, Sexual intercourse by husband upon his wife during seperation,376-C Sexual intercourse by a person in authority 376-D Gang Rape &376-E Punishment for the repeating offenders

Nirbhaya Gang Rape case, also known as Delhi Gang Rape case is the famous case of Capital Punishment. The outpouring anger and grief of people following the rape and murder gave rise to hopes for change in India. In this case, the Supreme Court said that brutality with which the offence is committed can’t be ignored and there is no chance of reformation, so accused should be hanged to death. Government of India passed an ordinance which provides death penalty in cases of rape that lead to death or leaves victim in “persistent vegetative state”. So, in this Case, the Supreme Court of India have given the Death Sentenced to all the Rapists.

Adultery

Historically, many cultures considered adultery a very serious crime, some subject to severe punishment, usually for the woman and sometimes for the man, with penalties including capital punishment, mutilation, or torture. Such punishments have gradually fallen into disfavor, especially in Western countries from the 19th century. In countries where adultery is still a criminal offense, punishments range from fines to caning and even capital punishment. Since the 20th century, criminal laws against adultery have become controversial, with most Western countries decriminalising adultery.

However, even in jurisdictions that have decriminalised adultery, adultery may still have legal consequences, particularly in jurisdictions with fault-based divorce laws, where adultery almost always constitutes a ground for divorce and may be a factor in property settlement, the custody of children, the denial of alimony, etc. Adultery is not a ground for divorce in jurisdictions which have adopted a no-fault divorce model, but may still be a factor in child custody and property disputes.

International organizations have called for the decriminalising of adultery, especially in the light of several high-profile stoning cases that have occurred in some countries. The head of the United Nations expert body charged with identifying ways to eliminate laws that discriminate against women or are discriminatory to them in terms of implementation or impact, Kamala Chandrakirana, has stated that: "Adultery must not be classified as a criminal offence at all". A joint statement by the United Nations Working Group on discrimination against women in law and in practice states that: "Adultery as a criminal offence violates women’s human rights".

In Muslim countries that follow Sharia law for criminal justice, the punishment for adultery may be stoning. There are fifteen countries in which stoning is authorized as lawful punishment, though in recent times it has been legally carried out only in Iran and Somalia. Most countries that criminalize adultery are those where the dominant religion is Islam, and several Sub-Saharan African Christian-majority countries, but there are some notable exceptions to this rule, namely Philippines, Taiwan, and several U.S. states.

Section 497 in The Indian Penal Code

497. Adultery.—Whoever has sexual intercourse with a person who is and whom he knows or has reason to believe to be the wife of another man, without the consent or connivance of that man, such sexual intercourse not amounting to the offence of rape, is guilty of the offence of adultery, and shall be punished with imprisonment of either description for a term which may extend to five years, or with fine, or with both. In such case, the wife shall not be punishable as an abettor.

This section punishes the offence of adultery committed with a married woman without a consent or connivance of her husband the main feature of this offence is that the male offender alone has been made liable. this offence is committed by a third person against a husband in respect of his wife. If an act of sexual intercourse takes place between a married man unmarried woman or with a widow or with a married woman whose husband consents to is, this offence shall not be deemed to have been committed.  it is not required for an offence under this section that the offender should know whose wife the woman is but he know that she was married, woman.

RAPE(Section 375)	ADULTERY(Section497)
1 Woman – (a)    Rape can be committed on any woman, Married or Unmarried (b)   Rape can be committed on woman-The offence is committed against the will and without the consent of the woman	1Woman – (a)    Adultery takes place only when the Woman (with whom sexual intercourse is had) is the wife of other person (b)   Adultery (violation of the marriage bed) cannot be committed with (1) An unmarried woman (2) with a married woman whose husband consents or (connive to wink at) at it
2 Consent of Woman – The offence can be committed even with consent of the girl, if she is under 16 years of age	2 Consent of Woman – Woman is a willing or consenting party (otherwise it would be Rape)
Whether it can be committed but a husband with his own wife? Yes if the wife is below 15 years old and also time if husband have sexual intercourse with his wife  then it is a rape	Whether it can be committed by a husband with his wife own wife? No
Offence is against what? Against the person of the Woman.	Offence is against what? Against Marriage
Who is the aggrieved party? The woman herself.	Who is the aggrieved party? The husband
How punished? Imprisonment for life of 10 years or fine or both	How punished? 5 years or Fine or Both

Cultural and Religious Tradition 

Islam

"Do not go near to adultery. Surely it is a shameful deed and evil, opening roads (to other evils)."^{[Quran 17:32]}

"Say, 'Verily, my Lord has prohibited the shameful deeds, be it open or secret, sins and trespasses against the truth and reason.'"^{[Quran 7:33]}

Hinduism

The Atharvaveda and the Upanishads, also acknowledge the existence of male lovers and female lovers as a basic fact of human life, followed by the recommendation that one should avoid such extra marital sex during certain ritual occasions (yajna).