Something About The Law

In 1994 Narayan Chetnam Choudhary committed the crime of murdering five women, one of whom was pregnant and two were children with a tender age of two and a half and one and a half years. In 2000 the Supreme Court confirmed his death sentence. Nine years hence, he lies in the jail at Pune wondering of the morning on which he would be executed.

Albert Camus in the famous essay titled ‘Reflections on the Guillotine’ stated that “knowing that you are going to die is nothing”, but “knowing whether or not you are going to live, that’s terror and anguish”. The horrors of the death penalty itself are known to one and all. But to make a convict wait endlessly thinking of the day he would be executed is worse than death itself. So, has also the Supreme Court of India stated in numerous cases. Narayan’s case is not an isolated one. The National Crime Records Bureau reports that till 31^st Dec. 2005, there were 273 people sentenced to death (not clear as to by trial court or SC ) and at the same time, there has been only one execution in the last ten years. This in comparison to the fact that there were 1422 executions between 1954 to 1963 alone. I’m in no manner advocating that the execution of their sentence be carried out, but am sympathizing for one can not even imagine the plight of each of these people awaiting their sentence to be executed.

The law on this issue has been well settled by the Indian Supreme Court. The landmark case of Triveniben v. State of Gujarat stated that a delay in the execution of the death sentence is a valid ground for commutation of that sentence to a life sentence. It has been acknowledged that a receiving a sentence of death is one thing; but a death sentence followed by a lengthy period prior to execution is another. Earlier, in TV Vatheeswaran’s case, the Court stated that the question is whether in a case where after the death sentence is given, the accused person is made to undergo inhuman and degrading punishment or where the execution of the sentence is endlessly delayed and the accused is made to suffer the most excruciating agony and anguish, the Court can commute the sentence on that ground ?

The answer to this, affirmative as it is, lies in the rationale that after Krishna Iyer’s judgment in Sunil Batra’s case, even a prisoner has the rights guaranteed to every citizen by the Constitution. This also includes the right to life and liberty. To make the accused suffer endlessly as a form of torture till the time the execution of his sentence is carried out necessarily is a violation of this right and thus a ground for commutation of his sentence. Then why is it that so many still lie in the jails suffering such horrid moments and feelings ? Perhaps it is because the delay factor comes into play when the Apex Court pronounces its judgment on the case and other remedies exhausted. Though not in Narayan’s case ( the SC pronounced judgment in 2000 and no legal proceeding/ mercy petition since ), with the President of India sitting on 44 mercy petitions at present including the famous Afzal Guru, the State has a major role to play in factoring this delay. This is only a minor subset of the fact that thousands of poor people languish in jail awaiting a hearing in their case and not being able to afford bail. The Criminal justice system of the country is plagued by such unaddressed issues and still justifies itself as a moral institution with convictions in the Jessica Lal and Nitish Katara cases.

India shares the honor of being one of the last democratic countries in the world to keep capital punishment in its arsenal of repression. We believe that it is the right way to deter terrorism and other heinous crimes. The aspect of deterrence plays an important role then. In fact so much so, with 150 people dead in the Hooch liquor tragedy in Gujarat, the state Government is planning to introduce an amendment in the Bombay Prohibition Act so as to include the death sentence as form of punishment. If passed, it would be one of the few laws prescribing a death sentence apart from the penal code itself and would make a mockery of the requirements under the Indian Penal Code of a death sentence; act to be committed with intent to cause death or knowing that in all probability is must cause death etc… This aspect of deterrence playing a role itself is useless. For instance, various proclamations are being made to give the death penalty to terrorists. But we do know that preparing themselves to commit the most heinous of crimes also includes a preparation to die; thus minimizing the role if any, of deterrence. In fact, most death sentences or laws having a death sentence arise out of a special situation; like the one in Gujarat and to quote Camus here once again, “if, therefore, there is a desire to maintain the death sentence, let us atleast be spared the hypocrisy of a justification by example”. Read the rest of this entry »

The Children We Sacrifice, a documentary by Grace Poore, a South Asian feminist writer and activist of the Voices Unheard Sisters Unseen fame, deals exclusively with child sexual abuse (CSA). Though I haven’t watched the documentary, the message it seems to be sending across is this: CSA is an everyday reality for about half of India’s children, however, somehow, it remains the least undocumented offences in the country. It, therefore, is not surprising that no legislation specifically deals with the issue which can rightly be categorised as one of the darkest and most worrisome blots on the Indian society.

Just to list out, CSA is widely prevalent in India in different forms: trafficking, sex tourism, devadasi system, prostitution, pornography, incest, child rape and child marriage. The Indian Penal Code, 1860 and the Immoral Traffic Prevention Act, 1986 (ITPA) are supposed to deal with most of the above heinous offences. The state of Karnataka, along with two other states, has special law to prohibit devadasi system. We also have the Prohibition of Child Marriages Act, 2006. Pornography is sought to be combated through the Indecent Representation of Women (Prohibition) Act, 1986 and the Information Technology Act, 2000.

Given the above scenario, the question as to why we need a separate legislation like the Goa Children’s Act, 2003 or the proposed Offences Against Children Bill, 2005  which awaits cabinet nod even after almost 4 years of its introduction, is intriguing. Well, the truth is the above listed legislations do not deal effectively with the forms of CSA they seek to criminalise, let alone the hitherto unaddressed and ignored forms of incest and male prostitution. While inadequacy of bringing perpetrators of child rape to book follows directly from the very wording of Section 375, IPC, the 2006 Act on Prohibition of Child Marriages does not affect the validity of the child marriage. The ITPA has also come under constant criticism primarily for sexual abuse in ‘rehabilitation’ homes which are supposed to provide succour to victims of sexual abuse! Report of the Parliamentary Committee on the ITPA, 2006 even described rehabilitation under the Act to be nothing short of incarceration. The Bombay High Court in Prerna v. State of Maharashtra went so far as to say that children who were found soliciting for the purpose of prostitution should be considered as children in conflict with the law under Chapter II, Juvenile Justice (Care and Protection of Children) Act, 2000! The Goa Anchorage Case is yet another instance where the law has failed miserably to deliver.

One could go on and on about the problems galore with the legislations that are in place. Then what about those crimes that the law does not even recognise as offences? Study on Child Abuse, 2007 conducted by the Ministry of Women and Child Development notes the horrific existence of incest that now pervades Indian society but is kept under cover due to reasons of family honor. This study by ECPAT International reports on prostitution of boys in the Indian city of Hyderabad, from where I write this post. The literature is rich with several such instances. Unfortunately, such evidence has not found favor with the Legislature and these crimes still continue unabated.

It is clear that the existing legal framework is grossly inadequate and insufficient to deal with child sexual abuse in an effective manner. The Goa Children’s Act and the Offences Against Children Bill provide some hope in the right direction. As the nobel laureate Gabriela Mistral rightly says,

“We are guilty of many errors and faults, but our worst crime is abandoning the children…Many of the things we need can wait….The child cannot…..To him we cannot answer ‘tomorrow’. His name is ‘today’.”

The Offences Against Children Bill (which for the first time defines and recognises incest as an offence) must be made into a legislation as soon as is possible.

Abondoned freight containers, 40 ft by 8 ft by 8 ft – littering the roads were not an uncommon sight in Afghanistan before and during the US led war. ‘Death by Container’, as it was called was seen as a cheap means of mass murder used by the Taliban and the Northern Alliance before the war and continued to be in practice even after its start. It was only in 2002 when Haglund and a team formed by the Physicians for Human Rights (PHR) investigated these graves that were created during the war under the supposed supervision of the US Special Forces, that these incidents gained some international concern. Newsweek, in a brilliant article reported the piece here.

“Mohammed arrived at Qala Zeini about 7 that evening. Several other container trucks were already waiting inside the fort. So were about 150 soldiers, all Afghans. At about 9, the prisoners- a mix of afghans, Pakistanis, Arabs and Chechens- arrived from Yerganak in open trucks and pickups. Soldiers ordered the prisoners down from the trucks and stripped them of their turbans, caps and vests. Then they herded the captives into the containers, as many as 200 to a truck. The fighters realized that they were not going home, as promised. “F……Shamuk Naseri”, one driver recalls the prisoner screaming. “He betrayed us”. The doors of the container trucks were locked.”

…………………………………………………

“Later when the trucks reached the prison camp. The US Soldiers at the camp had to witness dead bodies being brought out of these containers. They probably didn’t know that they had died of asphyxiation and believed that they were killed in war…”

That was 2002; and today it is said that more than 2000 taliban prisoners had been killed and buried in this manner. Cheney, Rumsfeld and Bush denied acknowledging that the US forces or its allies may have been involved in these heinous acts. Come July 2009 and President Obama has ordered investigations into these actions and acknowledged that these might be a certain degree of responsibility that the alliance forces may have to bear. He stated;

“I think that, you know, there are certain responsibilities that all nations have Even in War“.

I never thought this day would come when a world leader would show such a commitment to the Rule of law and protection of human rights as President Obama has been doing off late.

It is often said that in the establishment and preservation of democracy certain acts are committed that belittle democracy itself. For the US led war in Afghanistan, to have campaigned and attempted to legitimize itself with the ideal of ‘establishing democracy and protecting rights’, to be involved, even if in an observing role in such gruesome acts is horrid and shameful to learn. Not that this is a first though, we have heard of Abu-gharaib and Guantanamo haven’t we ? Read the rest of this entry »

Last week the Gujarat Government appointed a Commission to inquire into the changes in demographic patterns in Gujarat ’since independence’. The idea apparently, was to identify the reasons behind the ‘polarisation’ and migration of population.

The first admission that comes out of this action is that fact that there has been polarization in Gujarat. The ghettos in Ahmedabad are evidence of that; but the Government had not formally acknowledged this fact yet. An important aspect of the commission’s mandate is to give “recommendations and policies as a guidance” for stopping the polarization of population in the state.

The Appointment of such a Commission has received criticism from a large number of people. The principal argument being that it would already increase the already present polarization in the state rather than mitigate it. That however, it not the point I’d like to write on. My focus is more on a certain member of the Commission, his appointment and the legal relevance of it.

The Commission is to be headed by Justice BJ Sethna, a retd. Judge of the Gujarat High Court. Who is he? Think best bakery and the Gujarat High Court upholding the acquittal of the 21 accused in the case. Justice Sethna was a member of the division bench that gave that ill fated judgment. If the reader recollects, the judgment also stated that Zahira Sheikh was not threatened; a false statement proved by the fact she is now in jail for perjury.

The Judge then has some connection with the Gujarat riots. Without imputing any damage, he is still ‘interested’ in this matter considering the fact that most of the polarization started after the riots in 2002 and not since independence as the Gujarat Gov. makes it out to be. Probably it could also be the just because a judge has given a judgment in one manner, it should not be imputed that he cannot give a decision/ report otherwise. But is must be said that his very history and background creates a prima facie doubt as to the character and impartiality of the Commission.

There is an age-old principle in law that a judge is presumed independent and free of bias. But even this principle does not stop a judge from declining to hear a matter or sitting on a Commission. The most recent incident in this manner is when Justice Katju made comments about a Muslim having a beard and later declined to hear the review petition and transferred it stating that it was inappropriate for him to hear the matter now.

In fact, a few years ago the House of Lords dealt with the question of Lord Hoffman’s giving a judgment in the Pinochet case. The submission was that since the judge was closely associated with Amnesty International, he should not have sat on the bench and thus the judgment he gave earlier was void. The house of Lords, while negativing this contention went at lengths to explain judicial bias and the extent to which it can invalidate a judgment. (Readers may read the judgment here to know more)

The fundamental principle is that a man may not be a judge in his own cause. This principle, as developed by the courts, has two very similar but not identical implications. First it may be applied literally: if a judge is in fact a party to the litigation or has a financial or proprietary interest in its outcome then he is indeed sitting as a judge in his own cause. In that case, the mere fact that he is a party to the action or has a financial or proprietary interest in its outcome is sufficient to cause his automatic disqualification. The second application of the principle is where a judge is not a party to the suit and does not have a financial interest in its outcome, but in some other way his conduct or behaviour may give rise to a suspicion that he is not impartial, for example because of his friendship with a party. This second type of case is not strictly speaking an application of the principle that a man must not be judge in his own cause, since the judge will not normally be himself benefiting, but providing a benefit for another by failing to be impartial.

Even without a legal point on this, the appointment of Justice Sethna exposes a certain degree of malice and gives and idea of the intentions of the Gujarat Government in appointing this Commission. With such factors present, the result is sort of already known even before the Commission has commenced its work.