Horrors of a Rape Trial in India: A Saga of threat for masturbation or delivery of Justice?

Introduction

About 50% of the Indian male population is positively traced with a sexual dysfunction which creates hindrances in basic human instincts, leaving one crippled with ignominy. Impotence is the inability in developing or maintaining a penile erection sufficient to conclude the act of intercourse to orgasm and/or ejaculation occurring biologically which is mainly of two types-physical and psychological. Unlike sterility, potency is transitorily dependent on various factors. Untreated Impotence results in sexual sadism. The Mental Healthcare Act 2017, disregards sadism or psychologically generated impotence, indirectly making India the “impotence capital of the world.”

Secondly, the atrocious Impotence Test prevailing chiefly is considered a decisive piece of evidence in cases of rape. This embarks the beginning of torture in the Indian Criminal Justice System. The inhumane approach adopted by the Indian Penal Code in giving discretionary powers to the police officers attacks the scheme of the Indian Constitution. Despite the generic relevance of the test in most cases, routine practice violates Article 21 (Right to Life) of the Indian Constitution. In this article, we highlight the extraneous essence of the impotence test in light of the Indian Criminal justice system and the Indian Constitution.

The terror of the Impotence Test

Traditional female-centric laws pertaining to sexual offences in India butcher male integrity and violate their basic human rights. Checking the potency in rape cases remains a significant practice of law. The relevance of potency extends to adoption, nullity of marriage and divorce along with sexual offences.

Section 53 of the Criminal Procedure Code (Cr.P.C.) showers “unfettered discretionary power” on police to believe that an examination will afford evidence for the case and wistfully magistrates are ousted of such powers. The lacunae in the provision can be identified as:

Firstly, according to acclaimed Modi’s Indian Medical Jurisprudence, the potency test establishes the capability of committing the alleged sexual acts but the hamartia is the laxity of courts in considering situational and psychological factors, resulting in varying opinion of courts on similar matters.

Secondly, force may be used by the police authorities on the unwilling person to collect samples, otherwise threat of masturbation performed on him is invited caused by wrongful interpretation. Religious seers,like Raghaveshwara Bharathi and Asaram accused of rape faced a similar threat. The DNA Technology (Use and Application) Regulation Bill, 2018, bifurcates consent required in taking bodily fluid into two instances, written Consent  in crimes with less than 7 years of punishment and no consent for crimes with punishment of more than 7 years. The clear legislative intent is to differentiate between the two which gets contradicted by the unchecked power given to police authorities in deciding the necessity of performing the examination. Thus, the Indian Penal Code violates the ‘due process of law’ of the Indian Constitution.

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Nationwide Class Action in the U.S. Protects the Right to Seek Asylum

A Seattle-based federal court has stepped in to protect the right to seek asylum, deciding in favor of a nationwide class constituting thousands of asylum-seekers in a case with important implications for the Trump administration’s recently-announced quota policy for U.S. Immigration Courts. On March 29, 2018, Chief U.S. District Judge for the Western District of Washington Ricardo S. Martinez issued an 18-page order granting the plaintiffs’ motion for summary judgment in the Mendez Rojas v. DHS case. Judge Martinez’s forceful decision shores up the due process rights of asylum-seekers under the Fifth Amendment to the U.S. Constitution and statutory rights grounded in the federal Immigration and Naturalization Act and Administrative Procedure Act, as well as protections enshrined in international refugee law more broadly.

The named plaintiffs in the suit are asylum seekers from Guatemala, Honduras, Mexico, and the Dominican Republic. Collectively, they stand in for two classes of individuals certified by the Court last year, those who declared a fear of return to their home countries and have undergone a credible fear interview and been released to pursue their asylum claims, and, second, those released without first undergoing the credible fear interview. None of the named plaintiffs received notice of the one-year filing deadline or a meaningful mechanism to timely file their asylum applications. Asylum seekers must file their asylum applications within one year in order to receive asylum protection.

The class action lawsuit, brought by counsel from the American Immigration Council, Northwest Immigrants Rights Project, and Dobrin & Han, PC, included asylum seekers released from detention who are in removal proceedings in immigration court and who have yet to be placed into removal proceedings and who were not given notice of the one-year filing deadline to apply for asylum.

The Court agreed with the plaintiffs that the lack of notice to asylum seekers violates the congressional intent behind the one-year filing deadline. Created by Congress in 1996, the one-year filing deadline was ostensibly designed to guard against fraudulent asylum claims. The law’s most ardent supporters, however, made clear that the implementation of the deadline should not impede protection for genuine asylum-seekers. During discussions on the Senate floor, for instance, Sen. Orrin Hatch (R-Utah) stated:

Like you, I am committed to ensuring that those with legitimate claims of asylum are not returned to persecution, particularly for technical deficiencies. If the time limit is not implemented fairly, or cannot be implemented fairly, I will be prepared to revisit this issue in a later Congress.

The Court also relied on U.S. Supreme Court precedent, specifically Mullanenoting that procedural due process requires that notice be “reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.” In this case, the Court found that the publically available DHS documents discussing the one-year filing deadline were not reasonably calculated to provide adequate notice to the asylum-seeking plaintiffs. The Court note that some of the asylum seekers in the class believed they had actually applied for asylum by virtue of undergoing a credible fear interview, in which they explained their fear of return to their home country in great detail to a USCIS asylum officer.

The Court also highlighted the problems caused by informing someone that they will be instructed on how to apply for asylum in court in the future, while the court dates referenced often take place well beyond the one-year filing deadline imposed. My 2016 article in the Wisconsin Law Reviewexamines the problems at the intersection of our burgeoning immigration court backlog and the one-year filing deadline in greater detail.

Judge Martinez signaled his sympathy regarding the extreme vulnerability of asylum-seekers, grounding his decision in the fact that “many class members have suffered severe trauma, do not speak English, are unfamiliar with the United States’ complicated immigration legal system, and do not have access to counsel.”He went on to conclude that DHS’ failure to provide adequate notice is a violation of the Due Process Clause of the U.S. Constitution.

Responding to DHS’ argument that the Court owed deference to agency “procedure,” the Court stated simply, “no deference is owed to procedures that violate a statute or the Constitution.” Currently, there is a ping pong back and forth between the agencies overseeing the asylum process. Until a Notice to Appear is filed with U.S. Immigration Court, the court will not accept an asylum application. If a case appears likely to be headed for a court appearance, however, USCIS, which includes the asylum office, routinely denies jurisdiction. There is currently no actual deadline for ICE to file a Notice to Appear with immigration court, leaving asylum-seekers and attorneys in limbo and unable to meet the deadline–a “technical deficiency” in the purest sense.

Importantly, while declining to reach the constitutional argument for a meaningful application mechanism, the Court found that defendants’ failure to provide a uniform mechanism by which an asylum-seeker could actually timely apply for asylum, assuming she gained knowledge of the deadline, violated the asylum statute and the Administrative Procedure Act. The Court concluded by ordering DHS to provide notice of the one-year filing deadline to class members who have already been released. Further, Judge Martinez ordered that DHS give notice to future asylum-seekers prior to or at the time of release them from detention. DHS is also required to adopt and publicize uniform procedural mechanisms to ensure class members can timely file their asylum applications. Implementation and the reception from immigration judges nationwide to the decision remains to be seen. Already, advocates shared a report of a judge at the Arlington immigration court refusing to enter the Mendez Rojas decision into the record because he stated that the Executive Office for Immigration Review is not bound by the Administrative Procedure Act.

Assuming implementation is successful, this decision represents a win for asylum-seekers and brings greater clarity and organization to an already-overwhelmed and backlogged immigration court system. Judge Martinez’s order represents yet another instance in which the federal courts have intervened in administrative confusion to ensure constitutional due process and justice for immigrants. The decision is a step forward in upholding American values and adhering to our domestic and international legal obligations to protect refugees from return to countries where they would face a threat to their life or freedom.