Acquittal of rapists on weird grounds will set bad precedents

     

Two recent judgements of Delhi and Punjab & Haryana High Courts resulting in the acquittal of accused persons, convicted by lower courts in rape cases, have created aflutter across the country. While the Delhi High Court has acquitted a high-profile filmmaker Mahmood Farooqui, who came into limelight for his film ‘Peepli Live’, which was themed on sensationalism in journalism. He was convicted by a lower Court of Delhi for raping a 26-year-old American researcher on the night of 28^th March 2015. The logic for the acquittal of the accused filmmaker is highly unsettling because it has said that a ‘feeble no’ from the victim could a consensual one. The Punjab and Haryana High Court has even gone to the extent of shaming the victim by saying that she happens to be of ‘promiscuous character’.

The Delhi High Court says, ‘instances of woman behaviour are not unknown that a feeble ‘no’ may mean a ‘yes’. If the parties are strangers, the same theory may not be applied, if the parties are in some kind of prohibited relationship, then also it would be difficult to lay down a general principle that an emphatic ‘no’ would only communicate the intention of the other party. If one of the parties to the act is a conservative person and is not exposed to the various ways and systems of the world, mere reluctance would also amount to negation of any consent. But same would not be the situation when parties are known to each other, are persons of letters and are intellectually/academically proficient, and if, in the past, there have been physical contacts. In such cases, it would be really difficult to decipher whether little or no resistance and a feeble ‘no’, was actually a denial of consent.

Judgement reads like a fiction, which elaborates that the victim has come to the house of the accused on his invitation. Both the victim and the accused consumed liquor in varying measures. The accused was displaying highly emotional behaviour in a drunken state. Somebody else was also to join them in the drinking session but he did not turn up. The victim’s inherent motherly love started overflowing towards the accused. Then the accused expressed his desire to make love with her. The victim initially says ‘No’ but ultimately goes along. In her mind, she remembered the case of Nirbhaya, a hapless girl who was brutally raped and killed and succumbed to the desire of the victim. She even made a mental move of feigning orgasm so as to end the ordeal and participated in the act. After completing the act, the accused asked her to do it again. In the meantime, the privacy was disturbed with the ringing of the doorbell and the arrival of the two associates of the appellant. The questions which arise are whether or not there was consent; whether the accused mistakenly accepted the moves of the victim as consent; whether the feelings of the victim could be effectively communicated to the accused and whether mistaking all this for consent by the accused is genuine or only a ruse for his defence. At what point of time and for which particular move, the accused did not have the consent of the victim is not known.

To answer the aforesaid questions, it would be necessary to see what the word “consent”, especially in relation to sexual activity, connotes. In normal parlance, consent would mean voluntary agreement of a woman to engage in sexual activity without being abused or exploited by coercion or threats. An obvious ingredient of consent is that, as consent could be given, it could be revoked at any time; rather any moment. Thus, sexual consent would be the key factor in defining sexual assault as any sexual activity without consent would be rape. There is a recent trend of suggesting various models of sexual consent. The traditional and the most accepted model would be an “affirmative model” meaning thereby that “yes” is “yes” and “no” is “no”. There would be some difficulty in a universal acceptance of the aforesaid model of consent, as in certain cases, there can be an affirmative consent or a positive denial, but it may remain underlying/dormant which could lead to confusion in the mind of the other. The sermon of the Court on and says that ‘in an act of passion, actuated by libido, there could be myriad circumstances which can surround a consent and it may not necessarily always mean ‘yes’ in case of yes or ‘no’ in case of no. Everyone is aware that individuals vary in relation to expositing their feelings. But what has to be understood is that the basis of any sexual relationship is equality and consent. The normal rule is that the consent has to be given and it cannot be assumed. However, recent studies reveal that in reality, most of the sexual interactions are based on non-verbal communication to initiate and reciprocate consent. Consent cannot also be analyzed without taking into account the gender binary. There are differences between how men and women initiate and reciprocate sexual consent. The normal construct is that man is the initiator of sexual interaction. He performs the active part whereas a woman is, by and large, non-verbal. Thus, gender relations also influence sexual consent because man and woman are socialized into gender roles which influence their perception of sexual relationship and expectation of their specific gender roles with respect to the relationship. However, in today’s modern world with equality being the buzzword, such may not be the situation’.

         There is yet another aspect of the matter which has caught the attention of this Court. The wife of the appellant had a chance to read the communication between the victim and the accused and after coming to know about the alleged incident, she had corresponded with the victim wherein she had informed her that the accused had been under a rehabilitation regimen for his ‘bipolar mental condition’. The victim rubbished such an explanation by stating that the occurrence had to do more with the physical power of the accused than the mental condition. Though the mental condition of the appellant may not be a ground to justify any act which is prohibited under law, the same can be taken into consideration while deciding as to whether the accused had the correct cognitive perception to understand the exact import of any communication by the other person. Under such circumstances, the benefit of the doubt is given to the appellant.’ This is bizarre logic and it has shocked the conscience of the legal community.

The Punjab and Haryana High Court, which acquitted three persons, who were convicted for having raped a woman at Sonipat is equally disturbing. It is a well-established principle of the criminal jurisprudence that the benefit of doubt is given to the accused when his/her crime is not proved beyond all reasonable doubts but here in the case the court has not only acquitted the accused persons but damned the victims by quoting her statements from examination like, ‘it is correct that room was got booked by me at my own expense and I had also taken a pack of cigarettes, Viagra and condoms along with me’ and then goes on saying that ‘it is actually is reflective of a degenerative mindset of the youth breeding denigrating relationships mired in drugs, alcohol, casual sexual escapades and a promiscuous and voyeuristic world’. It further condemned the allegations of the victim to be an act of blackmailing.

The Court went on to say that ‘the testimony of the victim does offer an alternate story of casual relationship with her friends, acquaintances, adventurism and experimentation in sexual encounters and these factors would, therefore, offer a compelling reason to consider the prayer for suspension of sentence favourably particularly when the accused themselves are young and the narrative does not throw up gut-wrenching violence, that normally precedes or accompany such incidents’.

It is strange when there is growing awareness for the gender sensitisation these judgements have dealt a severe blow to victims by letting off the accused on such grounds as are not found at all in substantive or procedural criminal law.

Constitution Countenances Ban On Cow Slaughter

  For the last nearly a fortnight, the Central Government’s new Prevention of Cruelty to the Animals Rules have led to heated debates and agitations in many states particularly by those, who wish to fish in the troubled waters as they have their own axes to grind. Rules do not say anything about beef eating or not eating but effectively prohibit the sales of cows and buffaloes for slaughter at animal markets. While the Kerala High Court out-rightly dismissed the Petition filed against the implementation of Rules, the Madras High Court has given four weeks’ time to the Central government to clarify the doubts raised by the Petitioners. Thus, apart from political turmoil, legal and constitutional fault lines have also been opened.

         Cow slaughter has always been an emotive issue. The matter was discussed and debated at great length in the Constituent Assembly. Many freedom fighters had promised that the first goal of the Swadeshi government would be to impose a ban on cow slaughter. In 1940, a special committee of the Congress had also opined for the protection of cows. In fact, Mahatma Gandhi had once declared that a prohibition on cow slaughter was more important to him than swaraj itself. The proponents of the cow protection law in the Constituent assembly included Seth Govind Das, Pandit Thakurdas, Shibban Lal Saxena, Ram Sahai and Raghu Vira among others. Just a few days before the India got Independence Babu Rajendra Prasad, who later became the President of India, wrote a letter to Pandit Jawahar Lal Nehru saying that “I have been flooded with postcards, letters, packets and telegrams making demand that cow slaughter should be stopped by legislation. The Hindu sentiment in favour of cow protection is old, widespread and deep-seated. The Hindu feeling on account of recent happenings is very much agitated and this movement… is bound to gain strength more rapidly than we can imagine.”

       In fact, it was the religious argument that rooted the ban on cow slaughter in the reverence attached to the cow in the Hindu culture. The economic argument was based on the multifarious utilities of the cow in an agrarian economy – the medicinal value of urine, usefulness of cow dung, hides and bones etc.  Pandit Thakurdas, a prominent leader from Punjab and a vociferous advocate of the ban on cow slaughter opined that ‘the best way of increasing the production (of food crops) is to improve the health of human beings and breed of cattle, whose milk and manure and labour are most essential for growing food. Thus, the whole agricultural and food problem of this country is nothing but the problem of improvement of cow and her breed.’ On religious plank he emphasised that, ‘our ancient sages and rishis, realising her(cow’s) importance, regarded her as very sacred. Here in this land Lord Krishna was born, who served cows so devotedly that to this day, in affection he is known as ‘Makhan Chor.’ In all, they brought forth two strands of argument – religious and economic.

       A Muslim member of the Constituent assembly Zahir-ul-Hasan Lari also supported the ban on cow slaughter and said that ‘If the House is of the opinion that slaughter of cows should be prohibited, let it be prohibited in clear, definite and unambiguous words… I submit that this is the proper occasion when the majority should express itself clearly and definitely.’ The ban on cow slaughter was thus put under 48 of the Constitution, one of the Directive Principles, which would guide the State in policy making and not as the part of the enforceable and justiciable fundamental rights. Needless to say, that fundamental rights inhere only in human beings not in the animals.

        Article 48 of the Constitution reads: The State shall endeavour to organise agriculture and animal husbandry on modern and scientific lines and shall, in particular, take steps for preserving and improving the breeds, and prohibiting the slaughter of cows and calves and other milch and draught cattle.’ There is no doubt that Article 48 was adopted as a compromise formula and the many members of the Constituent Assembly like Shibban Lal Saxena vehemently opposed to such back door tactics and told the Drafting Committee of not being ashamed of providing for the ban on the cow slaughter frankly and boldly.

         Way back in 1958 in ‘Mohd. Hanif Qureshi and others vs State of Bihar’ this issue was agitated before the Supreme Court. Bunch of petitions were filed against the Bihar Act, which prohibited the slaughter of cattle. The petitioners were Kasais (butchers) who contended that the Act infringes their religious rights to slaughter the cow(s) on Bakr-e-Eid and also hits at their profession. The Court ruled that after giving careful and anxious consideration to the pros and cons of the problem and in view the presumption in favour of the validity of the legislation, we feel that we must approach and analyse the problem in an objective and realistic manner. So, we have reached the conclusion (i) that a total ban on the slaughter of cows of all ages and calves of cows and calves of she-buffaloes, male and female, is quite reasonable and valid and is in consonance with the directive principles laid down in Article 48,  (ii) that a total ban on the slaughter of she-buffaloes or breeding bulls or working bullocks (cattle as well as buffaloes) as long as they are as milch or draught cattle is also reasonable and valid and (iii) that a total ban on the slaughter of she- buffaloes, bulls and bullocks (cattle or buffalo) after they cease to be capable of yielding milk or of breeding or working as draught animals cannot be supported as reasonable in the interest of the general public.

         The judges said that the ban on slaughter of she-buffaloes, breeding bulls and working bullocks (cattle and buffalo) which are useful is reasonable but of those which are not useful is not valid. The question as to when a she-buffalo, breeding bull or working bullock (cattle and buffalo) ceases to be useful and becomes useless and unserviceable is a matter for legislative determination. It is, therefore, not possible to apply the doctrine of severability and uphold the ban on the slaughter of she- buffaloes, breeding bulls and working bullocks (cattle and buffalo) which are useful as milch or breeding or working animals and strike down the ban on the slaughter of those which are useless. The result is that we uphold and declare that the slaughter of cows of all ages and calves of cows and calves of buffaloes, male and female, is constitutionally valid and slaughter of she- buffaloes, breeding bulls and working bullocks (cattle and buffalo), without prescribing any test or requirement as to their age or usefulness infringes the rights of the petitioners under Article 19 (1) (g) and is to that extent void.

       Later, the Supreme Court in State of Gujrat vs Mirzapur Moti Quereshi Kasab Jamat(2005) further elucidated the definition of other cattle by  observing that,  ‘having specifically spoken of cows and calves, the framers of the Constitution  chose not to catalogue the list of other cattle  in Article 48 and felt satisfied by employing a general expression other milch and draught cattle, which in their opinion any reader of the Constitution would understand in the context of words ‘cows and calves’.

 There is hardly any doubt that the thousands of cattle were being smuggled to Bangladesh via Nepal from India for their slaughtering under the garb of trade. These rules framed under the Prevention of Cruelty to Animals, which allows sale of cattle from one farmer or breeder to other will deal with severe blow to the beef traders. And, therefore, naturally they will make hullaballoo against the new rules. Legal aspect is absolutely clear in view of the catena judgments of the Supreme and other High Courts but will the government be able to withstand the political onslaught that it is going face in the Monsoon session of Parliament is to be seen.

Conflict between ‘Morality’ and ‘Choice of Woman’ on abortion

It is estimated that in India more than seventy thousand young women die every year undergoing an unsafe abortion. It is mainly because they cannot avail the facilities of the legal termination of their pregnancy for various reasons. It must be fresh in the memory of the most of the people of India that way back in 2012, a young 31-year-old Indian Dentist Savita Halappnawar died at the Galway Hospital in Ireland due to the complication of a septic miscarriage as she was denied an abortion. The untimely death of the young woman because of the insane and mindless laws of the Ireland, guided by the Catholic belief, led to worldwide agitation. Savita was seventeen weeks pregnant. Despite knowing the fact that she was carrying a ‘still’ child in her womb, the Hospital did not allow the abortion. Even the plaintive scream of the young promising Dentist with excruciating pain could not move the Hospital Doctors to save her life in the name of the Catholic Religion.

In India also the abortion was illegal but on the intense demands of the Human Right Activists across the country, the Medical Termination of Pregnancy Act was passed in 1971, which allowed the abortion of the fetus of  up to 20 weeks on three grounds (a) when there is danger to the life or risk to physical or mental health of the women; (b) on humanitarian grounds- such as when pregnancy arises from a sex crime like or intercourse with a lunatic women etc. and (c) eugenic grounds- where there is a substantial risk that the child, if born, would suffer from deformities and diseases.  

The right of the woman to live with dignity as provided under Article 21 of the Constitution gets little importance in the Act because of danger to her life as determined by the doctors that decide the fate of abortion. The factor, therefore, that comes into play is the life of the woman and not her choice. It is a matter of happiness and satisfaction that the Supreme Court of India has started adopting the balanced view on this issue. Every woman who decides not to continue with her pregnancy has her own history and reasons. The answer to it is not easy. For example; what should the doctor do when the daughter of a friend who cannot abort her fetus because she cannot get the support of her family due to their religious beliefs? She is all alone but she does not want the child. Should the Doctor sit in judgement? What would have been the response of the doctor in such a case if the girl had been his/her own daughter?

The second scenario is a corporate executive who going through a challenging divorce. She was distraught at finding that emergency contraception had failed her. She would have experienced a legal setback had her husband and opposing counsel knew that she was pregnant. While it was impossible to prove the husband’s infidelity, her pregnancy could have been used to tarnish her image and weaken her case. In this case, whether the Doctor should adopt the sympathetic approach towards the woman or go by the cold law?

The third situation visualises the story of an uneducated housemaid. She has already two children and a failed sterilisation. Her husband is uncaring and unsupportive and prone to drinking. She is desperate and abortion is her only option because she cannot afford to have a large family. She has continued to exercise her reproductive freedom by being on contraceptives but even then she got undesired pregnancy. What should the Doctor do in such case?

Such predicaments for the doctors and courts exist not only in India but all over the world. ‘Roe v. Wade’ (1973) became one of the most significant cases in the history of U.S. Supreme Court – which literally divided the nation into "pro-choice" and "pro-life" camps and inspiring grassroots activism. This is a landmark decision of the United States Supreme Court establishing that most laws against abortion violate a constitutional right to privacy, thus overturning all state laws outlawing or restricting abortion that were inconsistent with the decision. Jone Roe, the plaintiff wanted to terminate her pregnancy because she contended that it was a result of rape. Relying on the state of medical knowledge, the decision established a system of trimesters that attempted to balance the state's legitimate interests with the individual's constitutional rights. The Court ruled that the state cannot restrict a woman's right to an abortion during the first trimester, the state can regulate the abortion procedure during the second trimester "in ways that are reasonably related to maternal health," and in the third trimester, demarcating the viability of the fetus, a state can choose to restrict or even to proscribe abortion as it sees fit.

There are many arguments which are advanced against abortion like; (a) the issue of the fetus' life, which raises the question of whether one person's desire for autonomy can extend to ending another's existence; (b) the killing of innocent is a crime and the fetus is also an innocent life; (c) many women suffer significant emotional trauma after having an abortion; (d) there is also some evidence that having an abortion may increase a woman's risk of breast cancer in later life. Some other complications include damage and/or infection to the uterus and the fallopian tubes making a woman infertile. Menstrual disturbances can also occur; and (e) an embryo (or, in later stages of development, a fetus) is a human being, entitled to protection, from the moment of conception and therefore has a right to life that must be respected. According to this argument, abortion is a homicide.

The recent judgment of the Supreme Court in Meera Santosh Pal and Ors vs Union of India and Ors’ on has come to the rescue of a distraught woman, who was in the advanced stage of pregnancy. The case history, in brief, is that Meera Santosh Pal, is 22 years old apprehended danger to her life, having discovered that her fetus was diagnosed withAnencephaly, a defect that leaves foetal skull bones un-formed and is both untreatable and certain to cause the infant’s death during or shortly after birth. This condition is also known to endanger the mother’s life.

The Court said that ‘we have been informed that the fetus is without a skull and would, therefore, not be able to survive. It is also submitted that the woman has undergone a psychiatric evaluation. She is reported to be coherent, has average intelligence and with good comprehension. She understands that her fetus is abnormal and the risk of fetal mortality is high. Moreover, the continuation of pregnancy can gravely endanger the physical and mental health of the woman’.

The Court observed: ‘there is no doubt that a woman’s right to make reproductive choices is also a dimension of “personal liberty” as understood under Article 21 of the Constitution of India. It is important to recognise that reproductive choices can be exercised to procreate as well as to abstain from procreating. The crucial consideration is that a woman’s right to privacy, dignity and bodily integrity should be respected. This means that there should be no restriction whatsoever on the exercise of reproductive choices such as a woman’s right to refuse participation in sexual activity or alternatively the insistence on the use of contraceptive methods. Furthermore, women are also free to choose birth control methods such as undergoing sterilisation procedures. Taken to their logical conclusion, reproductive rights include a woman’s entitlement to carry a pregnancy to its full term, to give birth and to subsequently raise children.’

The Court said ‘the crucial consideration in the present case is whether the right to bodily integrity calls for a permission to allow her to terminate her pregnancy. The report of the Medical Board clearly warrants the inference that the continuance of the pregnancy involves the risk to the life of the pregnant woman and a possible grave injury to her physical or mental health as required by Section 3 (2)(i) of the Medical Termination of Pregnancy Act, 1971. Though the pregnancy is into the 24th week, [but] having regard to the danger to the life and the certain inability of the fetus to survive extrauterine life, we consider it appropriate to permit the petitioner to terminate the pregnancy. The overriding consideration is that she has a right to take all such steps as necessary to preserve her own life against the avoidable danger to it.’

The right to life, the right to liberty, and the right to security of person are major issues of human rights that are sometimes used as justification for the existence or the absence of laws controlling abortion. Arguments on morality and legality tend to collide and combine, complicating the issue at hand. Abortion debates, especially pertaining to abortion laws, are often spearheaded by advocacy groups belonging to one of two camps. Most often those in favour of legal prohibition of abortion describe themselves as pro-life while those against legal restrictions on abortion describe themselves as pro-choice. Both are used to indicate the central principles in arguments for and against abortion: "Is the fetus a human being with a fundamental right to life" for pro-life advocates, and, for those who are pro-choice, "Does a woman have the right to choose whether or not to have an abortion? “It is expected that in the days to come the law will tilt towards ‘women’s choice’ rather than religious or moral considerations.

 Adultery law treats women as chattel and lowers their dignity 

                Parmanand Pandey

         

        Section 497 of the IPC deals with adultery and it is considered to be a cruelty by the husband on the wife but not the vice versa. Thus, it is not based on gender equality. However, Supreme Court and other High Courts are now crystallising the adultery cases by pronouncing that to have the extra marital cannot termed to cruelty. Let us first see what section 497 says, "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."

        Conscientious people have been raising this question as to why a woman is still treated like chattel although she has made giant strides in all fields.  Even if a married woman seduces a man to have sexual intercourse with her betraying in the most her own husband she is not even slightly punished or even fined. Why is it that only the man who has to go to jail for a term of up to five years? This law of adultery is more than 150 years old and therefore no right person in his or her senses would like to retain it in the present form. This section 497 of the Indian Penal Code  wrongly assumes a woman to be incapable of having a sound mind and exempts her from punishment even though she herself may lure a man and prompt him to have sexual relations with her with her own free consent. Does it appear to be strange in the twenty first centuary that a woman can be adulterous but she cannot be prosecuted. On the one hand , it gives a blank cheque to a woman to misuse it but on the other hand, her position is no  better than that of the property of the husband. Why is it that a married woman can indulge in sexual relations with as many men as she likes and yet is not held liable in anyway? Why is it that a woman is treated as personal property of the husband under our law? 

Why is it that a woman who after getting educated from highly reputed educational hubs, getting a top corporate or government job like IAS, IPS etc; is still considered incapable as a person and therefore in spite of being married and sleeping with some person other than her husband is not punishable under IPC? How can this be justified by any sane person? How can a woman who betrays the unflinching faith of her husband and sleeps with some other person be allowed to escape unpunished ?

      In Pinakin Mahipatray Rawal Vs State of Gujarat , the Supreme court said, that Marital relationship means the legally protected marital  interest  of one spouse to another which  include marital  obligation  to  another  like companionship,  living  under  the  same  roof,  sexual  relation and   the exclusive enjoyment of them, to have children, their  up-bringing,  services in the home, support, affection, love,  liking  and  so  on.   Extra-marital relationship as such is not defined in the IPC.   The court said that merely being "intimate" with another woman is not sufficient ground for a man to be held guilty of inflicting cruelty on his wife on the charge of failing to discharge his marital obligations. The ruling came in a case where the wife committed suicide suspecting the husband of intimacy with a woman colleague in office. The trial court and the Gujarat high court held him guilty under Section 498A for causing cruelty to his wife and under Section 306 of IPC for abetting suicide.  "Harassment, of course, need not be in the form of physical assault and even mental harassment also would come within the purview of section 498A IPC. Mental cruelty, of course, varies from person to person, depending upon the intensity and the degree of endurance, some may meet with courage and some others suffer in silence, to some it may be unbearable and a weak person may think of ending one's life," the bench said.   Following the ratio decidendi of  K.V. Prakash Babu Vs State of Karnataka, the Supreme Court said that 'we intend to make it clear that if the husband gets involved in an extra-marital affair that may not in all circumstances invite conviction under Section 306 of the IPC but definitely that can be a ground for divorce or other reliefs in a matrimonial dispute under other enactments'.  Similarly the Delhi High Court has also termed the adultery charge very painful for the spouse and has therefore granted divorce on this ground in the case Harjit Kaur Vs Surinder Singh. 

       It must be mentioned here that many countries have decriminalised adultery. IPC is the creation of Britishers,who inserted Section 497 as a penal offence. What is more surprising is that England itself has decriminalised adultery and does not treat it as a criminal offence. It is high time that this law is revisited even in India and amended to meet the present circumstances. 

        In France, the wife is punishable with a minimum term of three months to a maximum of two years but discretion rests with the husband to terminate the sentence and accept her again as his wife. The adulterer is also similarly punished. It must be noted here that in Malaysia, Hong Kong and Singapore and many other countries adultery is not punishable at all. In Pakistan and most Islamic countries, adultery can be punishable with death and very harsh punishment is inflicted. In most of the states of USA it is either not punishable or both the parties indulging in adultery are equally punished and there is no gender discrimination. In Philippines, it is the married woman who is alone held accountable. Will our law makers think of enacting the  law that is more in tune with the times for upholding the dignity of women at par with men? This is the crying need of the hour.

Well Deserved Contempt Notice To Justice Katju

Anybody, who has seen Justice Markandey Katju on the Supreme Court bench and has been following his writings in newspapers and blogs after his retirement would hardly have any doubt that he often goes berserk, unreasonable and facetious. The recent example is his offer to Pakistan of giving Kashmir along with Bihar. Very recently he made the most scandalous statement about the IQ and scholarship of all Supreme Court Judges except the two. Therefore, the contempt notice issued against him is well deserved and Justice Gogoi needs to be complemented for this bold decision. It is true that one can severely criticise the judgments and there will be no contempt of the court but once motives are attributed to the judges, it becomes the contempt of the court. And who should know better than Justice Katju? But regrettably, more often than not, he ends up criticising the judges rather than their judgements.

I was also present in the Courtroom no.6 yesterday from 2 P.M to 4.15 P.M till the Court rose after dictating the order of issuing the contempt notice to Justice Katju. The arrogance and sarcasm of Justice Katju was resonating from every sentence of his address to the Court, when he tried to give more importance to the ‘common sense’ over the ‘codified Criminal law’ and well defined sections 6 and 113 of the Evidence act. He over emphasised on the ‘believability’ arising out of the ‘common sense’ than the ‘admissibility of evidence’. Justice Katju was adamant on the application of common sense even when Justice U.U.Lalit tried to drive his point home that in the absence of admissibility the Supreme Court cannot conjure up the reliability. Belying all my hopes, there was no novelty in the arguments of justice Katju. In fact, it was an uninspiring piece of banality devoid of any spark of brilliance.  

The conduct of Justice Katju even when he was on the Bench of the Supreme Court was unbecoming to the exalted post that he held. He used to make fun of even the respected Senior Lawyers of the bar.  The bench is supposed to be respectful to any lawyer, even if he or she is new to the profession, but Justice Katju used to get sadistic pleasure in misbehaving with the Lawyers. That apart, Justice Katju had been most erratic, arbitrary, unreasonable and the worst violator of Judicial discipline as a judge. He has himself admitted in a blog post that as the Judge of Allahabad High Court he used to grant bail invariably to all Pakistani Nationals, who were to be deported by the government for overstaying in India. He has self-confessed that he used to grant interim relief with view to helping Pakistani citizens so that they could stay in India either till their death or become so old that Government would not repatriate them on the humane ground. Can there be anything more ridiculous and inexcusable act on the part of a judge who has taken the oath of the Constitution of India? Obviously, Justice Katju considers himself to be a law onto himself and conveniently forgets even the Constitution of India if it comes into his whimsical path.

 Not long ago, Justice Katju unilaterally branded Mahatma Gandhi and Netaji Subhash Chandra Bose as the agents of British Government. His baseless assertions about of two iconic figures of India’s freedom movement left millions of countrymen into daze and utter shock. He did not give any proof in support of his wild opinion against these legendary persons. When the Indian Parliament unanimously passed a resolution condemning Justice Katju, he filed a Writ Petition in the Supreme Court of India alleging that his Fundamental Rights of ‘free speech and expression’ have been trampled upon because the Indian Parliament never gave him any opportunity of hearing before passing resolution against him. Incidentally, when this Writ Petition was being argued by the senior lawyer Gopal Subramanian in the Court of Justice T.S Thakur (as he was not a CJI then), I was also present in the Court to conduct my own case, I found that Justice Thakur was at his courteous best but he was very firm in sending a message to Justice Katju that he (Justice) cannot have unbridled freedom of speech and expression. Look at temerity and absurdity of Justice Katju that he wants to demean Gandhi and Bose in the name of his right of freedom of speech and expression but has no compunction in denying the same rights to others even to the Members of Parliament. Even yesterday, during the review- hearing of the Saumaya’ case Justice Gogoi always addressed with honorific Justice Katju but it was not returned to him with same respect from Katju Saheb. So much so, that he wanted to impress upon with the ludicrous logic of being once senior to Justice Gogoi in the Supreme Court.

As far his judgements are concerned, particularly on the labour laws, are like nightmares. His understanding of labour laws was/is shallow and highly retrogressive. The sooner they are set aside the better for the working class of the country.

Anyway, let us see how he replies to the Contempt notice.

Bribe, laxity and incompetence define offices in Uttar Pradesh

Azamgarh is the Lok Sabha constituency of the Samajwadi Supremo Mulayam Singh Yadav. His son Akhilesh Yadav is the Chief Minister of Uttar Pradesh. There are many ministers in the cabinet of Shri Akhilesh Yadav who hail from the district. However, if you go to Azamgarh, you will not find anything that gives you the feel of any VIP constituency. Go to the District Hospital and witness the horrible condition of the patients. There are many class-1 dispensaries in the district with reasonably good buildings sans doctors and other medical equipment. Private doctors are literally rolling in money. People are being fleeced by the private doctors and the owners of the shanty Hospitals day in and day out because there is no choice left for them. The government finds itself thoroughly incapable of having any control over its own hospitals.

I was in Azamgarh last week for three days and had to go to the many offices for a small personal work. In normal course, I should not have been harassed to go to the offices yet the Babus made me run for two days. I went to the PWD office to take the compensation of my land, which was acquired by the state government for construction of the approach road in 2013. I must have written half a dozen letters to different District Magistrates and Executive Engineers of the PWD from time to time for the sake of the payment of petty amount of compensation but every time I got the evasive reply from them. During this visit I first met the present District Magistrate, Suhas L.Y., who is a well behaved Kannadiga. He is a very young, dashing officer indeed and is not more than 35 years. He was very warm and courteous to me and assured me that the compensation would be given in the shortest possible time. He agreed with me that the Administration should have taken my bank account number and identity proof and instead of giving the cheque, the money could have been directly transferred to the bank account. This method should have been adopted in the cases of all land owners, whose lands have been acquired. This is certainly very logical but in government offices, logic hardly works. The D.M. asked his OSD to contact the concerned Executive Engineer, who was in the state capital Lucknow on that day. The energetic District Magistrate then told me to meet the Executive Engineer the next day and get the compensation amount then and there as his instructions would have been conveyed to him by then.

As advised by District Magistrate I went to the office of the Executive Engineer Mr. K. Gore. He was not in the office, then somebody suggested me to go to his residence, which is barely 25 meters away from his office. The Executive Engineer was cordial and he assured me to cooperate to the fullest possible. However, he also told me that the payment of compensation would require some paper work, which in fact is a lot of paper work. Thereafter started my travails. I was asked to go along with an Amin, who took me from one office room to other, from one Engineer to the other.

After three hours of hectic running from one place to the other, I thought that the amount would be handed over to me but in the end I was told by the Executive Engineer to reach to the office of the Tehsil Sub Registrar next day to relinquish the land in favour of the department to receive the cheque in lieu thereof. I was also asked to bring two witnesses with their photographs and identity cards. Tehsil building is 18 kms away from my village and nearly 35 kms from the District headquarters of Azamgarh. I had no choice but to go to the Tehsil office at Burhanpur. There are many deed writers, who sit in Tehsil building, whose introduction to the new technology is confined to only mobile phones and photocopiers. One of them wrote deed of my land in long hands, witnesses were made to sign, their photographs were taken, fingerprints of the buyer and sellers were also obtained at many places in the register.

Deed writing in long hands takes nearly one and half hours but if the computers are allowed to be used, it can be done in 7 or 8 minutes. After nearly four hours of strain the cheque for Rs. 85000/- was given to me. The anomaly in the rate of the compensation is clearly visible. Those who had taken the compensation in 2013 before the Land Acquisition Bill was passed they also got the same amount, which I was given three years thereafter in 2016. I was told that if the compensation had been given to me as per new rates, I could have got nearly Rs. 45 lakhs. But there is no use in arguing with the employees in the district administration. In fact, there is no government worth name in Uttar Pradesh. It is the writ of Revenue officials, Police and Babus of various departments runs in the entire state. They listen to you only when you are a politician or an influential moneyed man, otherwise you have to suffer at their hands and pay them bribe for the movement of files. A euphemistic word ‘speed money’ is used for bribes.

The offices of the Sub-Registrar in the Tehsils across the state of Uttar Pradesh reek with the corruption, laxity and incompetence. Their non-cooperation to both buyers and sellers is seen to be believed. While the buyers will be asked to cough up the money to do the work the sellers are be treated with disdain. This deplorable condition prevails in almost all offices. But in Police Stations, Hospitals, Courts, PWD offices, Sales Tax Offices and Sub Registrar Offices, the condition is very appalling. I have not been able to understand while the technology is not being used, which is bound to bring efficiency, and rid the offices from corruption to a large extent. Technology will also considerably save time, money and harassment of the public. Computerisation has been adopted with half-hearted approach in all offices. The employees working in the government offices come and go at their own sweet wills. While the condition of roads has certainly improved in the present regime of Akhilesh Yadav, the law and order situation has touched its nadir. Electricity supply is very erratic. Sometimes the electricity is supplied in the day time and sometimes in the night. People have no alternative but suffer in silence. 

Technology can work wonder in administration of justice

Former President of India K.R. Narayanan once famously said ‘Courts in India are like casinos’. Satyamev Jayate (truth prevails), is emblazoned in all courts across the country but justice is often denied to most of the litigants. One cannot say it for certain that he or she would get the justice despite the law and facts in his/her favour.  

Illustrious writer Charles Dickens wrote a famous novel ‘Bleak House’, which deals with a well-known fictional case ‘Jarndyce and Jarndyce’. In the case of family dispute two members approach the court which took so much time that by the time the judgment came, both of them not only became old but pauper as well.  More or less the same story is still found in India where the cases linger on, from one court to other, for years nay, decades together. By the time the justice is delivered it loses all relevance for the parties.

This trite sentence of ‘justice delayed is justice denied’ is being heard in India for decades. Surprisingly nothing tangible has been done so far to rectify it. There is a Law Commission in India. which has submitted many reports for improvement in the justice delivery system but they all have been of no avail. Members of Parliament, cutting across party lines, cry from the house tops for the simplification of the justice delivery system but they also have miserably failed to give any solution. Similarly judges and lawyers speak volumes for making the justice ‘cheap and speedy’ but the result is here for all to see.

Coming to the main point nobody knows it for sure in what way the judgement will go. That is why, the metaphor of casino may appear to be derogatory but that is a true statement of fact. In India we do not have the inquisitorial system of justice. Our is adversarial system, where delay is inherent. The plaintiff approaches the court then the reply comes from the other party, which again is replied by the complainant or claimant. The documentary proofs are filed as evidence then both parties and their witnesses are cross examined. Finally, the advocates argue the case with the citations of the precedents of the case laws and other relevant materials. Ultimately the decision is pronounced by the judge which takes many years. Needless to mention both parties and their advocates adopt unethical methods to win the case. Advocates are expected to be the friends and the officers of the courts and their job is to help in the just administration of justice. But when you speak to any lawyer, he will tell that he is more accountable to his client, who has paid him because clients want him to win the case by means fair or foul. And that is why, the element of dishonesty has crept into the justice delivery system right from litigants up to the level of the judges. There is case of a workman K.K. Verma, who started fighting for his reinstatement in service in 1985, won his case from the Labour Court but the matter is still pending in the Delhi High Court, although he has retired two years back. Is it not sordid commentary on the justice delivery system?

The adversarial system of justice is, without doubt, time consuming but with the help of modern technology revolutionary changes can be brought about in the administration of justice. The number of judges in the ratio of population and litigation is certainly an important factor but only by increasing the number of judges speedy justice cannot been ensured unless and until the modern technology is introduced in full measure. For example, the filing of the cases can be done though the electronic medium without wasting much of the time in registry, defects can be cured without creating any hassle. Evidences can be recorded through video. A time slot can be allotted to advocates to argue the cases. The adjournments on flimsy grounds should be stopped and if adjournments are sought on unconvincing grounds then reasonable cost should be imposed. The technology can work wonder and therefore it is the only ray of hope. It will kick out in competent judges, insincere lawyers and litigation loving litigants.