This page contains essays / news articles that will provide information about what ails our legal and police system. The objective is agenda creation for action. First, we need to empower ourselves with facts. Next we need to energize ourselves and put pressure on the relevant authorities to improve our police and justice system, initially. And then reform other sub-systems that have impact.
Nation building, definitely, is every one's responsibility.
Stringent, Not Barbaric, Punishment Required
Soli J Sorabjee
The New Indian Express, 06-Jan-2013.
The brutal gangrape and murder of a young lady in Delhi has understandably evoked spontaneous outrage throughout the country. It has also led to certain proposals regarding changes in the law, and in particular about the punishment to be imposed on the rapist convict. Various suggestions have been made by different persons. For example, (a) the convict should be stripped and flogged in public, (b) the convict should be physically castrated in public, (c) public hanging of the convict straightaway and forget 'this trial thing'.
These persons are unaware of international norms and that our Supreme Court has frowned upon cruel and unusual punishments. Besides history testifies that public executions had become carnivals when people evinced vengeful and sadistic emotions which were expressed in the violence and ribaldry of crowd behaviour and had a brutalising effect on society, especially on children who would find nothing wrong in treating pets and other children with cruelty. Public executions have been abolished in several countries.
The rationale of the legitimate 'Cry for Justice' is a swift day-to-day trial which should mandatorily conclude in three to four months. The proposal that criminal trial should be dispensed with in the case of alleged rapists in contrary to the guarantee of fair trial in Article 21 of the Constitution. Barbaric conduct and acts of the convict certainly deserve most stringent punishment but not barbaric punishment without a fair trial. Otherwise the rule of law, a basic feature of our Constitution, would be subverted. It behoves a civilised nation to exercise restraint in matters of life and death, even in ghastly cases.
The Curse of Adjournments:
Delays in criminal trials result in serious adverse consequences to society and also affect a person's fundamental right to speedy trial under Article 21 of the Constitution. The phenomenon of 'laws' delays' which Hamlet bemoaned is ancient and persistent. Way back in 1912, a Division Bench of the Allahabad High Court ruled that it is most inexpedient for a Sessions trial to be adjourned and the adjournments should be granted only on the strongest possible ground and for the shortest possible period. Unfortunately, this admonition has been brazenly disregarded.
In a recent judgment delivered by a Bench of the Supreme Court comprising Justices Swatanter Kumar and Fakkir Mohamed Ibrahim Kalifulla, the court stressed that grant of adjournments is the principal cause for delays. Justice Kalifulla after an extensive discussion of the previous Supreme Court judgments stated that the mandate of Section 309 of Criminal Procedure Code (CrPC) dealing with the subject of adjournments was 'flouted with impunity' and that adjournments are granted on flippant grounds on the mere asking. The court was concerned that adjournments are granted to suit the convenience of the advocate concerned and declared that "at any rate inconvenience of an advocate is not a special reason for bypassing the mandate of Section 309 of the CrPC".
It is shameful that some advocates utilise their legal acumen and resourcefulness in perfecting the art of getting adjournments and are popularly known as 'adjournment counsel'. Their tribe flourishes because of the ease with which adjournments are granted by courts so as not to displease advocates and become unpopular. Judges must remember that they are not participating in a popularity contest. In this context, the Supreme Court has rightly directed the high courts to take note of the conduct of any particular trial judge who violates the above legislative mandate and to adopt such administrative action against the delinquent judicial officer as per the law.
The bane of frequent adjournments, however, will not be mitigated unless the Bar Council of India issues a direction to advocates to not seek adjournments on false and flimsy grounds. The autonomy of the Bar will not be affected thereby. On the contrary, the image of the legal profession will improve and the justice delivery system will function with expedition.
Time to Dirty Our Hands with the Indian Penal Code
Hard Light Soft Light (Yahoo Blog), 31-Dec-2012.
The rape, torture and murder of a 23 year old woman in New Delhi is not the reason for the current public outcry. It was that final weight tipping of the scale; it came at a point when the nation just couldn’t take any more. Rape has become so frequent that its presence is like the repeat telecast of the same episode running forgotten in a television while the family dines. The other compelling reason was the terribly familiar circumstances in which something grotesquely unfamiliar happened. The girl next door boarded a bus from a crowded place supposedly safe for students at 9:30 pm, and was skewered with an iron rod by six men. This can happen to just about any woman, anywhere, at any time. Thus the identification.
Since it’s so close to us, and has made us finally, finally uncomfortable enough, let’s get closer to the remedy as well. Yes, we need to stop rape and we need justice. But how to do that without researching on the Indian psyche for the next 20 years or waiting till a suitable avatar is reborn?
If the situation doesn’t change, each woman (that’s every female from fetuses to eighty plus) in the country would be unsafe. And every man would be either an accomplice or a victim, even if it’s in the most far-fetched way possible. No economic class or geographical region has been left insulated, as the rate of crime against women is rising in every state, in all communities and across all religions. We have to look upon justice as something necessary, like drinking water or a roof over our head. Not that everyone has roti-kapda-makan in India, but everyone agrees that these are necessities.
Assuming that everyone needs justice as urgently and as regularly as water out of a municipality tap, here are the steps to getting what we require:
If you think you need to first change society and then resurrect/amend/create laws, forget it. Believe me, a man committing rape out of depravity or ignorance or class-based anger can sit in jail and think about it as efficiently as he can at home. In fact, he would be better at thinking if he is in jail. Firstly, it would be an example to others – yeah – bad things happen to you when you rape. Secondly, society becomes automatically more peaceful if criminals are convicted and locked up. And finally, laws are meant to be applicable to everyone, from the prime minister to a beggar. Include politicians, government servants, police and military personnel.
But why would those horrid people in power listen to us? Haven’t they already expressed their massive disinterest by drowning us with water cannons and breaking iron tipped sticks on our backs? Well, to stay in power in our country, politicians need votes. So each protestor = one vote lost. If thousands of voters want justice and keep insisting on it, most politicians would be tempted to grant these demands. Yes, it’s our job to keep on at it till we get the law working for us. Infinite vigilance is the price of democracy.
To do all this, we have to know what laws exist and what don’t. So let’s destroy a few myths.
* We all know the jubilant 'breaking news' -- Delhi will set up five fast track courts and 25 more are coming up in Maharashtra. What these satisfying reports don't tell us is fact track courts have been around since 2000!
On 31 March, 2000, the 11th Finance Commission (people managing finance for the 11th Five Year Plan) granted the Ministry of Law and Justice Rs. 502.9 crores to set up 1,734 fast track courts. On 31 March 2005, when this five year term ended, the Supreme Court ordered the Ministry to continue with these courts. At that time 1562 fast track courts were operational. Rs. 509 crores were set up as their budget till 31 March 2010 @ Rs 4.8 lakhs per court per annum (recurring cost) and Rs. 8.6 lakhs as fixed cost. Last heard, Rs. 73.16 crores had been granted for fast track courts for 2010 - 11. All pending cases were to be rounded up and central funding for courts to have stopped by 31 March 2011 ...
* Things get better 2011 onwards. We are to have e-courts under the Department of Justice, as set up by the National Informatics Center. 12,000 of these were to be created between 2007 to 31 March 2012 and some 2249 more courts would come up by 31 March 2014. Rs. 935 crores was granted for this scheme.
Fast track courts existed and an estimated 32.34 lakh cases were resolved by them. It's a government estimate of course, and we don't know whether anyone was happy with the rulings, but this was at all possible. We don't know much about them, we allowed them to function in whichever way, we didn't know where the money disappeared. Now that we are familiar with the term 'fast track court', it's our responsibility to demand for them, see they get set up, and keep up the pressure to make them work.
If you don't like it, sit back, crib, and watch your taxes disappear every year.
* There are NO clear rules on what qualifies a case for a fast track court. General statements such as 'cases related to crime against women' won't do. The criteria for a case to move to the fast track court needs to be spelt out and incorporated within the Indian Penal Code, along with deadlines for judgement, and methods for tracking the case on the corresponding e-court.
This is our job. We have to bring up the demand and hammer it in, or keep expressing rage, hopelessness, anguish while holding candles over each Nirbhaya/Amanat/Damini.
* The Department of Justice has a collaboration with UNDP (United Nations Development Programme). Under this, a legal awareness cum support initiative called Access to Justice for Marginalized People have been running since 2008, and is supposed to end this year. The next phase would last from 2013 - 17. Under its umbrella are several tribal areas of Bihar, Chattisgarh, Jharkhand, Madhya Pradesh, Odisha, Rajasthan and Uttar Pradesh.
So what happens when villagers/higher caste men/police beat, rape and torture tribal women under the pretext of them being 'Maoist' or just to teach them a lesson? So far, NGOs and a part of the media have made the right noised while we have remained safely distanced. UNDP's pious efforts wouldn't protect women unless there is a clear law linking RTI, criminal and civil offences and constitutional provisions for SC/ST/OBC (especially in the area of land rights).
While the reservation issue has shaken the country time and again, we have mentally categorized and blocked tribal women as strangers in the jungle. Unfortunately, if we don't realize they are human, women and Indians too, our peaceful urban legal system would get affected. Once again, we don't have to wait till everyone wakes up to massive social truths. We first need the laws, change would follow perforce. When a police office shoves stones up a tribal woman's vagina, he becomes a criminal, not a candidate for the national award for "gallantry". Once a man like Ankit Garg is made to face justice on the Soni Sori case, any aspiring civilian rapist would think twice before tempting the law that doesn't spare policemen.
* Section 376 of the Indian Penal Code delineates the punishment for rape. A rapist gets a minimum of seven years in jail and a maximum of life term. Rape, under the current laws, is a bail-able offence. Marital rape, if proved, can be compensated with a fine or two years in jail. If the raped woman is less than 12 years old or pregnant, or if she is raped by a police officer/hospital staff/jailer/ rehab home staff/public servant or gang raped, the sentence starts with ten years in jail. Once again, this is bail-able. There is no punishment for attempt to rape. Rape is defined as penetration without consent. Nothing else qualifies for even a fine.
The Indian Penal Code, in so many words, is telling us that rape is no big deal. So a criminal can just say that the woman agreed to it and walk home happily. He can pay his way out, it's easy and economical. And if the victim can be proved 'a woman of easy virtue' who is 'habituated' to intercourse, the punishment reduces even in proved cases of rape! A 16 year old tribal girl, Mathura, was raped by policemen in 1974. In 1983, an amendment to the Evidence Act provided that if the victim says she did not consent, the act would be rape and not consensual sex. An in 1989, when another tribal girl, Suman Rani was raped by policemen, the court reduced the jail term from 10 years to 5 years as it seemed that she was 'a woman of easy virtue'.
* The Juvenile Justice Act of 2000, in tune with the UN's Convention on the Rights of the Child (CRC) states clearly that no child below 18 years of age can be given a life term or death sentence, irrespective of the nature of the crime.
Our penal code is a hand-down from the British era, with outdated terms such as 'outrage the modesty of a woman' or 'act of innocence' (to describe crimes by children). One of the accused in the Delhi case will be 18 in four months. Unless the laws are amended, he will spend two to three years in a state funded rehabilitation center or 'children's home', and then be free to roam the earth again.
The only way we can discourage rape is by insisting that laws, once set, be applied to everyone found guilty. This sounds simple, and is incredibly tough. Explains why we are still governed by stuff penned in the mid 1800's by the British government with only synthetic changes and amendments made from time to time.
If we don't want to create our laws, we have no right to demand justice. To have justice, we have to propose the laws and force them into place. No other way out.
Disclaimer. Yes, like everyone else, I had loads of data for a piece on rapes in India bristling with overwhelming statistics and gruesome details. And I could've written, like so many women in media, about my personal experiences within a dented, painted, at times tainted public life. I have read the usual reams of theory at university, written unbelievably wise papers, and can write a careful analysis on the Indian male/female/juvenile psyche. Like all outraged folk on social media and web forums, I could eloquently voice my massive shame and indignation about being an Indian ruled by villainous politicians. As an activist, I would have regaled you with real-life tales of narrow escapes, lecherous police and brave-heart rescuers ready to face any odd for a just case.
But you were reading all that already, weren't you?
The more we read and write and like and tweet, the wider grows the gulf between us and the actual incident. For that matter, the whole series of rapes grow increasingly distant, like thunder on mountain top miles away, as we talk loudly about these heinous crimes. So let's get down to the brass stacks, figure out what we want, and want them so hard that we get them.
The case of the overworked court
Despite heavy arrears in its case load, the Supreme Court has not hesitated to weigh in on the burning issues of the day
Business Standard, 28-Dec-2012.
With a dysfunctional Parliament and an executive busy trying to shield itself from a myriad scams, the Supreme Court of India has increasingly asserted its power over the years. It has proved to be the most powerful court among all democratic constitutions.
Consider some of the orders it passed in 2012 alone -- especially those related to economic matters. It scrapped 122 telecom licenses at one go for illegalities, leading to imprisonment of a Cabinet minister, government functionaries and corporate executives. The order also embarassed the government, since some licenses were held in joint ventures by multinational companies.
The court stopped mining in several districts of Karnataka, Andhra Pradesh and Odisha, starving the steel industry of its raw material. Probes by the Central Bureau of Investigation (CBI) were ordered into the politician-business nexus in the depredation of forest land for the sake of profit.
In another order that shook the government, the court delivered the Vodafone judgement easing the tax liability of foreign companies operating in the country. The government was so annoyed that it tried to shift the goal post in the Budget by changing the law retrospectively to justify its demand for tax after mergers and acquisitions. It approached the court with review petitions and clarifactory applications -- but all in vain. It has now returned to the court with another appeal, hoping that the judges will reinterpret the law in its favour this time. The last word has not yet been spoken, and the result will be out only next year.
Meanwhile, the continued monitoring by the court of investigations related to the 2G spectrum scam has raised the eyebrows of jurists. Although many observers believe that this is judicial overreach, the court has asked the Enforcement Directorate, CBI and other related to agencies to report periodically to it about the progress of investigations. In yet another controversial order, it has prohibited all courts in the country from hearing any petition related to the spectrum issue, and thus provoked another challenge to the constitutional powers of the court.
By interpreting the fundamental right to life and the freedoms in an expansive manner in the 1980s, the Supreme Court opened its doors wide to individual social activists, public interest groups, and even busybodies. The court has since seen a flood of grievances, highlighting everything from monetary scandals to nasty social habits like littering, spitting and smoking in public. It has not hesitated to take up to take upon itself tasks that legitimately belong to Parliament and the executive. The Supreme Court believes that when citizens complain of infringement of their fundamental rights, it has the power and duty to hear them and redress their grievances.
Although creaking under heavy arrears, the court has taken upon itself peripheral tasks such as protecting tigers and wild buffaloes in forests from the tourism industry, as well as regulating pilgrim flows to Mecca and Amarnath. The search for missing children and setting rules for the safety of women at workplace also engaged the court's attention. The workload has not discouraged it from taking up more issues highlighted in the media. When the judges read in the morning newspapers that Ponty Chadha and his brother shot each other in a Delhi farmhouse, the court moved suo moto and declared its intention to examine the role of security agencies.
The new set of public interest petitions come on top of those decade-old ones that it could not unscramble. The issue of networking rivers has been agitated for years, and has now been stealthily left to experts. So also the Sethusamudram project. A petition to enforce the rules of the Bonded Labour Abolition Act was on its files for three decades, and it is reported that there has been no prosecution under the law. The orders on child labour abolition, and setting up a fund with the penalty imposed on employers have made little difference on the ground. Petitions of street vendors have been pending for years, though these traders take up half the road left after the parking of motor vehicles. Their fundamental right to trade is pitted against the right to life of pedestrians.
Cleaning the Yamuna is still a distant dream and crores of rupees have flowed down the river -- now better described as a drain. River water disputes between several states, such as Cauvery and Mullaperiyar dams, continue to cast doubt on the power and capacity of the court. Though it has taken up these issues, chances of resolution are bleak.
Meanwhile, more scams are falling into the lap of the apex court. It has decided to go into the "Coalgate" swindle, the issue of foreign direct investment (before Parliament passed the Bill recently), and scams in different sectors like aviation ("Air India scam") and land allotments. Present and past chief ministers are in the dock. Some escape when the political wind changes, others are constantly in the shadow of corruption charges. These are apart from the 5,000 odd new cases filed every month, and more than 65,000 pending before it. Currently 27 judges are sitting in 13 benches dealing with this pile-up and they manage to dispose of an average of 4,000 cases every month.
There is an alarmingly long list of important cases, which should be decided by benches of at least five judges, and some of them by 13. Each of those 35 matters will take months of hearing, going by the current style of allowing a dozen counsel to ramble for weeks and enrich themselves. Then, there are 161 others that must be heard by benches of at least three judges because of the significance of the issues involved. If the court tries to take up these two sets of cases alone, it might take a decade and more to dispose of them, assuming that the court freezes all other work. The Supreme Court has shut its eyes to this frightening scenario -- out of sight, out of mind.
One reason that no chief justice can turn the tide is that there is a quick changeover of chief justices. Late this year, Chief Justice S. H. Kapadia retired and Justice Altamas Kabir took over the post. He will give place to Justice P Sathasivam next year. Add to this, the unhelpful attitude of the government, which grants only 0.2 per cent of the Budget to the judiciary. All these, and several more adverse factors, make the picture as dark as the preferred colour of the legal profession.
To seek justice, not revenge
Get rid of laws that distinguish between various types of rape
Pune Mirror, 28-Dec-2012
When we talk of amending the law on rape to provide for chemical castration, the death penalty and other forms of state-sponsored brutalisation, we seek revenge, and revenge is not justice.
Baying for blood pulls us into the gutter too, to the level of perpetrators. Let us not speak only of the law on rape, for that is not the only injustice women suffer. We should instead speak more broadly of equality and gender justice and that means addressing issues beyond bodily harm, issues that, when measure by their effect on generations, poison us as a society and a civilisation.
To satisfy ourselves with legisslation made in extremis is to turn a blind eye to fundamental wrongs. Summum ius, summa iniuria: there is no greater injustice than an extreme law; another ciceronian cadence in law that speaks to us across two thousand years.
We should first define the problem that faces us, and then see if the existing law meets our requirements, and change what must be changed. Look at how poorly our criminal law addresses gender equality. Take, for instance, Section 354 of the Indian Penal Code: "assault or criminal force to woman with intent to outrage her modesty".
And Section 509, about a "Word, gesture or act intended to insult the modesty of a woman". Outrage and insult a woman's modesty? What is this? Statutory provisions like this prevent nothing; they only reinforce every single reprehensible male-centric stereotype about what women should be ("modest", "virtuous", "chaste"). Take these sectioons out completely.
Include every unwanted assault on women, regardless of whether there is an intent to outrage anything or anyone, modest or immodest. Similarly, Section 497, on adultery, is a law that allows a man to be a philanderer but gives him -- and him alone -- recourse of he is cuckolded. Sections 366A and 366 B speak of, respectively, the "procuration of a minor girl" (below 18) and the "importation of girl from foreign country (below 21) with intent or knowledge of likelihood that she will be forced into "illicit" intercourse.
It's therefore not a crime, or at least not of this severity, if the "girl" is, say, 18 years and one day? And why must we speak of "importation" and "procuration" as if women are godown-able goods or items subject to customs declarations?
The Penal Code's section on rape speaks of forced intercourse "against her will" and "without her consent". That seems to be a distinction without a meaningful difference. S.375 does acknowledge that consent may be forced by threat and is no consent at all; that much must remain.
The trouble lies further on in the explanation which seems to require penile penetration. That needs amendment in a way that recognises that rape takes many forms: as long as there is coerced, non-consensual sexual activity of any kind, it should constitute rape.
The biggest issue in our rape law is the quantum of punishment. First, there should be no "fine" at all, only a mandatory jail term. Fining someone for committing rape is like offering him a ticket to do it again. If you believe that a stringent law is a deterrent then the thing to do is take the offender out of the equation completely, not slap him on the wrist, take a few thousand rupees off him and let him loose again.
Second, S.376 seems to make an altogether odious distinction between "types" of rape. Gang-rape, rape by a policeman, rape of a pregnant woman and others in one category carry a minimum sentence of 10 years, one that can extend to life. The other category implies that there is a form of 'regular' rape, one that's sort of okay and not as heinous: it carries a jail term of 7 to 10 years or life.
That, again, is a reprehensible distinction and must go: any form of rape must carry a minimum sentence of sufficient severity; as must that thing called a 'proviso', so beloved of lawyers, one that allows a court to reduce the sentence below the statutory minimum. We are told by the Supreme Court that this should only be made in rare and exceptional cases.
What might those be? Does that in itself imply that some types of rape are just 'okay'? Yes it does, and no, rape is ever 'okay' or 'understandable' or 'excusable'. And then there is that ludicrous muddle about marital rape. S.376 reduces the punishment for marital rape to a maximum of a two year sentence -- unless the wife is under the age of 12.
And S.375 actually makes an exception saying it isn't rape if a man has sex with his wife, provided she's above 15. There are so many problems with this one doesn't know where to begin, and the simplest -- and most just -- thing to do is get rid of these exceptions altogether.
A wife's consent to marital sex cannot be an assumption. The only assumption the law should make is that if the victim is below 18 -- not 16 -- then whether or not she is married, non-consensual sex is rape. We must, too, introduce essential statutory protections: for instance, the fact that a woman has had pre-marital or extra-marital sex, or even that she may be a commercial sex worker, is no excuse or mitigating circumstance.
As long as there is coerced sexual assault, it must qualify as rape. To say that because a woman is 'habituated' to sex (whatever that means) and therefore raping her is excusable is as absurd as saying that because your house had been burgled once it is all right to rob you again.
What we need is a comprehensive law that ensures that women have effective redressal against assault of every kind. What we do not need is the occasional vendetta.
Law & Justice Unable to Arrest Crime Rate: CJ
Express News Bureau
The New Indian Expresss, Hyderabad, 15-Dec-2012.
A three-day southern regional judicial conference on issues arising during administration of criminal justice began here on Thursday.
High Court chief justice Pinaki Chandra Ghose, in his inaugural address at the conference organised by the AP High Court in association with the National and AP Judicial Acadamies at Dr MCR HRD Institute, stressed the need for reforms and complete overhauling of India's traditional criminal justice system to offer greater justice to all. India inherited and borrowed from colonial powers systems of criminal law and procedures as well as rules of evidence. The rising crime and recidivism rates clearly indicated that the system was not an effective deterrent, he remarked.
Justice Ghose said that in actual practice, the problem of crime, like cases of murder, rape, theft and assault is much more serious than the official figures showed as several serious crimes were not reported due to intimidation and harassment of victims, and other reasons. Besides, in criminal cases the prosecuting officer has power to discontinue the prosecution on the ground that the state has insufficient evidence to win the case, and he has greater power over the freedom and liberty of individuals who come in his contact than any other agency.
"The police, prosecutors and courts prosecute principally the lower class criminality. They exercise too much discretions with least accountability. The poor, if found guilty, will get harsher punishment than their counterparts committing the same offence," the chief justice observed." Adjudication is the outcome of a collective exercise," he said.
Law minister Erasu Pratap Reddy announced that a gold medal, instituted in the name of his late father, former law minister E.Ayyapu Reddy, would be given every year to the meritorious candidates of judicial academy. National Judicial academy director KN Chandrasekharan Pillai, AP Judicial Academy director M. Vijayalakshmi, also spoke on the occasion.