Saturday, November 5, 2016

Why India should abolish the civil imprisonment of judgment-debtors

I address this issue in response to a post titled "The Bombay High Court’s S. 56 CPC Judgment and the State of Indian Sex Discrimination Jurisprudence" by Gautam Bhatia on his blog at https://indconlawphil.wordpress.com/2016/11/04/the-bombay-high-courts-s-56-cpc-judgment-and-the-state-of-indian-sex-discrimination-jurisprudence/

In my view, the entire concept of imprisoning a judgment debtor in the first place is unjust and an old-fashioned way of dealing with such a situation. I think Section 55 CPC itself needs review. The purpose of the law, i.e., to realize a debt owed can be achieved in other more effective ways that do not involve deprivation of personal liberty. Section 60 already provides for attachment and sale of property to realize the debt.

In fact if you look at the wikipedia entry on Debtors' Prisons, the entire concept of jailing people for a debt is being discarded by most liberal democracies, albeit slowly. Jailing people for debt is contrary to modern conceptions of human rights. 

Article 11 of the ICCPR, the International Covenant on Civil and Political Rights states, "No one shall be imprisoned merely on the ground of inability to fulfill a contractual obligation."

Article 1 of Protocol 4 of the European Convention on Human Rights prohibits the imprisonment of people for breach of a contract. 

The South African Constitutional Court in In re Farieda Coetzee v. Government of the Republic of South Africa (unreported, 1995), has ruled against the imprisonment of judgment debtors and has held that such imprisonment violates the right to freedom under the South African Constitution. See http://www.saflii.org/za/cases/ZACC/1995/7.html

I am also certain that empirical research will establish that it is almost always the poor who get jailed under Section 55. Section 55 contemplates arresting a judgment debtor who can then apply for insolvency to secure his release. How will a poor man in jail who has no money to satisfy a decree ever be able to afford/ organize a lawyer to be declared insolvent.

Also look at Sec 58. A man who owes Rs 501 can be jailed for six weeks, A man who owes Rs 1001 can be jailed for 3 months. Surely this law is archaic and not appropriate for the present times.

Going by this, Subrat Roy (Sahara) has served more time in prison than the maximum three months he could have been jailed for if there was an actual money decree against him.

So I do not agree with Gautam Bhatia that women should also get jailed for non-payment of a debt. Also in my view it is possible to argue that the overwhelming majority of Indian women face structural and institutional inequalities and discrimination that would justify section 56.

And similarly I also think that jailing someone for adultery in today’s age is archaic and an undue restriction of personal liberty. Divorce is a sufficient remedy for adultery. So I do not think that the law should also punish women for the crime of adultery. On the contrary adultery should be decriminalized for men as well.

No comments:

Post a Comment