No Getting Away with Crime

By Amba Charan Vashishth

A teenager of 15 from West Midnapore district of West Bengal, a 14-year old student  from Andheri in Mumbai and a boy of 15 from Jalgaon in Maharashtra have one thing in common: they all logged on to the “Blue Whale challenge” game online and ended up in committing  suicide. According to reports, the participants in the end are goaded into committing suicide.

It is a clear case of abetment and inducement to suicide under section 306 of the Indian Penal Code (IPC): “If any person commits suicide, whoever abets the commission of such suicide, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.”

No gainsaying the fact that the company which launched this online game is guilty of an offence under Section 306 IPC.  Since the suicides have taken place in India, the company is surely guilty. Why can’t those involved in promotion and popularising this game and thereby abetting commission of this crime be brought to book?  If those committing a similar act in India are tried and punished under the law, why should owners of this game be spared? They should not be allowed to go scot free.

It is good that the government has directed websites and online companies to offload the “Blue Whale” game so that Indian teenagers are not able to have access to it. But as long as those guilty of having committed this crime, directly or indirectly, are not brought to justice, the step will remain half-hearted.

 

Cheating through glossy ads

Our print and electronic media is flooded with misleading ads that induce unsuspecting consumers to part with their hard-earned money to purchase certain goods and services. We see advertisements ordinary individuals modeling donning white coats exhorting public to use and buy certain medicines, toothpastes and other consumer goods creating the façade of these being recommended by doctors and persons from medical profession. But, in reality, they are just models who, for money, are made to do or say so before a camera. These persons are neither from the medical profession nor remotely connected with it. Their professions and claims are not more real than our film personalities performing miraculous operations donning white coats in the make-believe super quality operation theatres.

 

Builders turn ‘dreams’ sour

Similarly, cases of two well-known builders have surfaced in which one company has gone in for liquidation and the other has failed to deliver the promised flats even after six-seven years. Those who bought flats are on the street protesting. Interestingly, there were some prominent celebrities who induced people to part with their money on false inducements and promises through glossy advertisements to own ‘dream’ villas, homes, flats and plots .

These cases constitute offences of cheating under Section 415 IPC which defines cheating: “Whoever, by deceiving any person, fraudulently or dishonestly induces the person so deceived to deliver any proper­ty to any person, or to consent that any person shall retain any property, or intentionally induces the person so deceived to do or omit to do anything which he would not do or omit if he were not so deceived, and which act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property, is said to “cheat”. Explanation.—A dishonest concealment of facts is a deception within the meaning of this section”. (Indiankanoon.org)

It is not the builders alone who have committed the crime of cheating. In fact, equally culpable are the celebrities, film heroes/heroines who work brand ambassadors of a product and induce people to part with their money on false inducements and promises. The generally too credulous public is taken in by the glamour of the celebrities whose fans cannot even imagine that these great men/women can take them for a ride like a film villain. Their responsibility does not end with receiving hefty fee for appearing on the electronic and print media. Therefore, the celebutantes cannot escape the charge of connivance in ths act of cheating which falls under Section 120-B IPC:(1) Whoever is a party to a criminal conspiracy to commit an offence punishable with death, 2[imprisonment for life] or rigorous imprisonment for a term of two years or upwards, shall, where no express provision is made in this Code for the punishment of such a conspiracy, be punished in the same manner as if he had abetted such offence.

(2) Whoever is a party to a criminal conspiracy other than a criminal conspiracy to commit an offence punishable as aforesaid shall be punished with imprisonment of either description for a term not exceeding six months, or with fine or with both.]

 

The builders too should not be allowed to flee away with the booty of the exploits of their false promises at the altar of the misery of those who shelled hefty amounts out of their hard-earned money. They cannot absolve themselves of their criminal liability.

Justice in Uttarakhand? Yes, but how much & for how long?

harish-rawatBy Amba Charan Vashishtha

No gainsaying the fact that the Supreme Court of India has dispensed justice in Uttarakhand by restoring the Harish Rawat led Congress government supported by other splinter groups after defection by its 9 MLAs. But how much and for how long? The question still looms large.

The origin of the trouble lay in the failure of the Uttarakhand CM, state and Central Congress leadership to stem the rot. Opposition party in the State or at the Centre whichever it may be, is the easiest whipping boy in such situations. When a group in any political party fails to be assuaged of its grievances, it is but natural for it to look for the opposition party to prove its righteousness. That is what happened in Uttarakhand. The disgruntled 9 MLAs sought succour with the opposition BJP ruling at the Centre.

The second irritant was the refusal of the Speaker to accede to the demand of the dissident MLAs for a division after he announced passage of the Budget with a voice vote, knowing full well that these MLAs besides the opposition BJP were opposing it. Even in the normal course, it is a tradition with speakers to allow division whenever a member or group presses for. To cite only one instance, during the consideration of the amendments to the Vote of Thanks to the President in the Lok Sabha in March this year, a member refused to withdraw his amendment. It was put to vote. The Speaker after seeking Ayes and Noes, announced that the amendment stood rejected. But the mover of the amendment wanted a division which the Speaker instantly granted. Everybody knows that the ruling party at the Centre enjoys unquestioned majority. Yet the Speaker generously consented. But in Uttarakhand, when the majority of the Government was in serious doubt, it was but desirable that the division should have been allowed. That precipitated the matter. The matter is before the court.

The Governor had fixed April 28 as the date for the CM to seek a vote of confidence on the floor of the House. In the meantime, CM sought disqualification of the 9 MLAs. On the eve of vote of confidence, the Speaker on April 27 — according to some media reports — after the promulgation of President’s rule by the Centre on that very day — disqualified them putting the CM in a win-win situation. Two days earlier had appeared a sting operation which clearly showed CM Rawat telling that he is willing to pay a hefty sum the next day after MLAs vote in his favour. How could this sting be brushed aside as a matter of no consequence without investigation? Should a government — and for that matter, even law and judiciary — allow corruption to take place and not take preventive action?

On May 24 CM Harish Rawat, according to reports, was grilled by CBI on this very sting operation for about five hours. He will also be summoned again.

There was a great drama on the judiciary level too. First, the High Court set aside the promulgation of the President’s rule and fixed date for vote of confidence. The CM instantly took charge again, held a cabinet meeting where some policy decisions were taken even without getting a copy of the High Court order. How could a CM who had yet to prove his majority in the House after three days take policy decisions? But nobody took offence to it.

The Central government knocked the door of the Supreme Court which immediately stayed the operation of the High Court order and cancelled the date fixed for vote of confidence. The President’s rule stood imposed again within 24 hours and Harish Rawat was, once again, not the CM. After hearing both the parties during which Centre agreed for a vote of confidence, the Supreme Court directed that the President’s rule shall stand lifted for two hours between 11 AM to 1 PM on May 10 during which the assembly will meet for a vote of confidence. In other words Harish Rawat was again CM for two hours.

This decision was followed by the announcement that the SC was to hear the petition of the 9 MLAs against their disqualification on May 9, a day before the vote of confidence. That added suspense to the whole drama. But on that day SC refused to stay the disqualification and directed that the concerned MLAs will not be allowed to vote. But SC fixed a regular hearing of the case after summer vacations in July. Obviously, this tilted the balance in favour of the CM.

Needless to recall that in 2011 the Karnataka High Court, in a similar situation, had allowed 16 disqualified MLAs to take part in the vote of confidence sought by the then chief minister.

After the count was over, a report was sent to the Supreme Court which on May 11 accepted that Rawat commanded a majority. The Harish Rawat government stood restored.

But the Sword of Damocles continues to hang and torment the Rawat government. What will happen if in July the SC set aside the disqualification of the 9 MLAs? Then the result of the vote of confidence in the Assembly on May 10 will become a nullity. The absence of a final decision in the matter is responsible for injecting an element of uncertainty. What will be the legal position of the Rawat government and the decisions taken by it in the interregnum?

The whole situation in Uttarakhand seems to be emerging like a circus. Nobody knows what will happen next. Leave aside the difficulties Harish Rawat will encounter because of re-alignment of political forces and his total dependence for subsistence on the support of independents and other splinter groups which are sure to demand their pound of flesh. The State is due for general elections after about 7 months. And nobody knows what will happen in between after two months. If political forces are responsible for the present mess in the State, the judiciary too has failed to clear the clouds by having not given its final verdict.

Native dress code ‘moral policing’, alien a ‘virtue’

moral polocingBy Amba Charan Vashishth

What an irony that when people are advised to dress property as per Indian traditions, there is a hoarse cry of ‘moral policing’. But these very people are religiously obeying the dress code imposed by our alien British masters.

The National Commission of Women (NCW) on April 27, 2016 issued a show cause notice to Delhi University’s Hindu college seeking an explanation about the new hostel rules which students have termed moral policing.
The rules listed in the new hostel prospectus ask students to dress as per “normal norms of the society”; warn that no visitors will be allowed without prior permission “including girl students”; allow only one night-out in a month. How can this be termed “moral policing?” What should one call the absence of it?
Would the NCW have found nothing offensive if the new rules provided students to dress against the “normal norms of the society”? Girl students should be allowed “without prior permission” in the boys hostels?
In no educational institution, Hindu College included, is staying in the college hostel mandatory. Students have the liberty to stay out where there is no ‘moral policing’. But if they wish to stay in the hostel, they have to stand by the rules. Should it not the college management, but the students who should frame the rules? Such a scenario is unheard of even in the most permissive democracies in the world. Can the opponents visualise the consequences of the absence of ‘moral policing’?
The opponents of “moral policing” are privy to promoting western culture and values as against the Indian ones and encouraging young girls and women to be “bold” which, in effect, means shedding as much clothes as they wish and can and exposing their bodies as much as they feel proud of. Looking beautiful is out of fashion these days; looking sexy is the latest fad.
It is a hot ticket to oppose whenever anybody calls for adherence to Indian traditions, way of life, dress and values. India remained a slave to foreign rule for over 1000/1200 years and they did everything to demean Indian culture and traditions. Even after about 69 years of freedom, we still seem not to have been able to come out of those slavish grooves. The invaders tried to hammer into our head that the Indian culture, various faiths, way of life, morals and traditions are much much inferior to the alien ones. They wanted us to forego what India stood for. Many, though only a fraction of our population, did so for fear and favour. It will, therefore, be no an exaggeration to say that we continue to suffer from that inferiority complex. Everything that is un-Indian and western, and against the Indian traditions and culture is welcome to them.
They cry hoarse at the ‘dress code’ today, but not against the one alien British rulers imposed and which we continue to religiously obey even today for courts, hospitals, offices, in the then Viceroy’s House (now Rashtrapati Bhawan), Governor’s houses, military messes, airlines, railways.
It is a legacy of our slavish past that judges and lawyers are required to put on black gowns and coats even when the mercury in Delhi and other cities rises above 40-480. The chancellor, vice-chancellor, chief guest, the students are made to wear special gowns and dresses on the occasion of convocation of the universities and colleges.
The Indian Penal Code (IPC) was imposed by the then British rulers to suit their designs. Since independence we have not been able to attune it to India’s cultural traditions and changing needs.
Irony is that we pounce upon what is negative in the western way of life, system of government and law but everything positive there is repulsive to us.
There are clubs in the country where a dress code is strictly enforced. In a prestigious club in Shimla which had it birth during the British rule, the dress code is so strict that the attendant there has the right to ask even a member to leave the premises if not properly dressed as per club rules.
This makes clearly manifest that the cry of our ‘secular-liberal-democrats’ is restricted to areas where individuals, organisations and institutions wish people to attire themselves elegantly and decently in keeping with India’s culture and traditions.
Going by the recent trends in India, it looks every Indian tradition is orthodox, obnoxious and barbaric which must be broken making way for new ones. Even the political and constitutional traditions evolved since independence are made to crumble and violated. On the other hand, Britain has no written Constitution of its own. The government of the country is run on the strength of healthy traditions that were evolved — and religiously followed — in the course of time to meet exigencies of administration during the last so many centuries. The British do not agitate for doing away with the age-old traditions. On the contrary, they take pride in those traditions. What will happen if the Britishers too, like Indians, started demolishing their rich social, legal and constitutional traditions?
For the British their traditions are a valuable national asset, for Indians these are stale and rotten which must be demolished and shunted to the archives of our inglorious past. This is so because the British never remained slave and were expansionist and colonial in their attitude. India, on the other side, never entertained expansionist designs and remained slave to foreign rulers for many centuries.
Since Independence India has only evolved itself into a permissive society where family, social and religious traditions are meant to be smashed. As a result, the institution of family is crumbling. Fidelity between husband and wife is giving way to licentious relations between consenting adult persons. Married life is giving way to live-in relationship with the liberty to change partner like changing hotel and room any time one likes. Sticking to life partner is becoming an old-fashioned orthodox way of life; divorce is the in-thing. Looking after one’s parents who looked after their children for so long is no longer a moral obligation. The guru-shishya (teacher-student) tradition is being given a go-bye. Now teachers are being punished if they punish or even scold students for not doing their home work and learning some lesson.
To where is the country being drifted?

No CCTVs in dance bars : There can’t be right to privacy in a public place

 

dance-bars
No CCTVs in dance bars

The Supreme Court order on March 02, 2016 forbade CCTV monitoring of the performance area in dance bars in Mumbai as it would be a violation of privacy. Cameras will only be allowed at the entry and exit points of the bars, the court directed. The verdict does have raised eyebrows among a section of the people.

For all intents and purposes, a hotel, a guest house or a dance bar are all public places where anybody can enter and get a room by paying the prescribed fee or rent. In the same manner any person can enter dance bars by paying the desired fee as one can enter a cinema house by purchasing a ticket. In a cinema house too, the management and owner does not enjoy unrestrained liberty to screen a film which has not been certified by the Film Censor Board. Otherwise, it is a violation of law.

In films too dance items are shot, but these can be exposed to general public view only after these have passed through the penetrating eye of the Censor Board. But in the case of dance bars, there can be no restriction as per the latest directions. An incident of vulgar display of indecency, obscenity or nudity in dance bars will thus be more difficult to detect and still more arduous to prove.

In our system of democracy, a person does have a right to privacy but only within the four walls of his house or room in a hotel. This cannot be extended to a public place. Can a person claim right to privacy in a park or at the dance floor of a hotel if he wishes to indulge in with his wife or a consenting partner what he otherwise can in the solitude of his bed room? When a person goes to a public place, he voluntarily chooses to shed his right to privacy and exposes him/herself to the prying eyes of all who may be present there. The court has allowed CCTV cameras only at the entry and exit points of the bars. That means every person visiting these bars shall be identified and recorded at the entry and exit gate of the bars. An advocate for bargirls argued that CCTV cameras at the bars would not just show the dancers, but also the patrons, who might not want to be identified. This in itself presupposes that there is something undesirable that the ‘patrons’ would not like to be identified. If something obnoxious and undesirable is not being performed in the dance bar, why should the ‘patrons’ feel shy of being identified?

We have CCTVs at every public place — a road, road-crossing, public park, market place, railway stations, bus stands, public places like Ganga and other river banks where men, women and children take a holy dip. Many big shops, departmental stores, shopping malls, petrol pumps, and other places are under CCTV surveillance. Not only that. Some individuals have CCTV cameras in their private houses where the entry and exit of every individual as also what goes on in the house gets recorded. Does it not violate the privacy of the visitors?

In these circumstances, how can the installation of CCTV at dance bars be a pernicious aggression on the privacy of individuals and not at other places? Right to privacy cannot be exploited as a shield to committing undesirable conduct, behavior and activity at a public place.

******

Amba Charan Vashishth

(The writer is a Delhi-based political analyst and commentator)

Failure to punish guilty is a ‘crime’ law commits

hashimpuraHashimpura killings

 

By Amba Charan Vashishth

It was a great news for many from many angles in the legal history of India.

According to the prosecution, Provincial Armed Constabulary (PAC) personnel had come to village Hashimpura in Uttar Pradesh’s Meerut district on May 22, 1987, and picked up about 50 Muslims as a congregation of 500 had gathered outside a mosque. 42 of them were found to be murdered.

It hardly matters to which community the victims belonged. What matters is that all the killed were human beings. Killing of any person of any caste, creed, sex or region is — and must be — condemned by all.

The saying “Justice delay is Justice denied” applies most appropriately to this case.

“The court has given benefit of doubt to the accused regarding their identification”, the special prosecutor explained, “and not regarding the incident”.  “The fact that the court referred the case to Delhi Legal Service Authority for rehabilitation of the victims”, the prosecutor stressed, “shows that the incident is not in doubt.”

After 28 long years, though accused have been acquitted and a ray of smile appeared on their face, yet they have suffered a trauma for that long which is more or less the total length of service a public servant renders on duty. They could get no promotion which they would otherwise have earned in the normal course.

“I am satisfied that justice is finally done”, said the 59-year-old Niranjan, one of the persons acquitted. “We faced the trial for last 28 years. During this period I failed to do anything for my family and children. I was a head constable at the time of the alleged incident and I am going to retire soon and I am still a head constable.”

To the greatly disappointed families of the victims the acquittals were “unfortunate” and “denial of justice”. But Babuddin, one of the survivors and eyewitnesses to the incident, regretted that he could not recognize the PAC personnel in court as they were wearing helmets as two decades had passed since the carnage.

Both the prosecution and the defence agree that the gruesome murder did take place but the accused earned the “benefit of doubt”. In a way disappointment of the bereaved families is as much justified as is the satisfaction of the acquitted accused though for totally opposite reasons. But the villain is the system of criminal jurisprudence, its shortcomings and weaknesses.

If the accused were not guilty, who else was? Whose is it the duty to find the real culprits? The law has no answer. And this is the impotence of the system of law we follow. It amounts to commission of another crime in the shape of denial of justice to the victims and their families and punishment to the guilty.

Failure to punish guilty is a ‘crime’ law commits

***

A Legal Puzzle not Easy to Solve

 Amba Charan Vashishth

Strange are the ways of God. Terian tu hee jane. (Only God knows how He conducts Himself)so goes another saying. No less strange are the ways of law. The thousands of enactments that have gushed out of the statute book of our State and Central legislatures since the colonial rule and after India became free have turned our system of jurisprudence into a great ocean, unmeasurable and unfathomable. Its waters are so violent and tricky that one cannot touch the shore of one’s destination without the compass of the relevant law and a legal navigator.

The latest case which has dazzled the perception and puzzled the mind of the common man — and, to an extent, even of a legal luminary — is the latest verdict of the Punjab and Haryana High Court which on April 21, 2015 commuted to life imprisonment the death sentence of one Dharam Pal, a resident of Shahpur Turk in Sonipat (Haryana).

He was awarded 10-year imprisonment on January 7, 1991 in a rape case  Out on a parole in 1993, he and his brother Nirmal Singh murdered the rape victim’s father, mother, two brothers and a sister on June 4, 1993, though the rape victim and her husband were able to save their lives. Dharam Pal was awarded death sentence which was upheld by the Supreme Court. In 2013, the President had turned down his mercy plea in a rape case  In 2013, the High Court had extended the stay on his execution fixed on April 15, 2013.

While pronouncing its verdict what weighed with the court was the fact that the President took over 15 years to decide his mercy petition. The other mitigating factor was that Dharam Pal had been on bail in the rape case in which he was, later, acquitted during the pendency of mercy petition.. As a consequence, he will remain behind bars, but not executed. How does his acquittal become a “mitigating circumstance” in the heinous murder of the alleged rape victim’s five family members remains a puzzle?

 

It must have ben the rarest of the rare cases in which a person who was sentenced to death, whose sentence was upheld by the Supreme Court, whose mercy petition was rejected by the President of India, and whose date of execution was also fixed, though stalled by the court, his sentence has been commuted by the High Court. This baffles the mind of the common man.

A freebie of two side effects with one medicine

mBy Amba Charan Vashishth

Media carries a very happy and heartening report that a research institute has developed an intravenous injection that will do away with suffering of a severe backache forever.  If that happens, it will provide another life to the ailing. In the present day lifestyle, backache is a very common painful experience.

In the modern day world research is a continuing process in every field. Medical science is doing a lot to make life convenient, comfortable and worth living.

There is another aspect of the research in medical science. New diseases are keeping pace with the research to cure the existing ones. As some incurable diseases have now turned curable, thanks to the medical research, many new ones have sprung up to pose a greater challenge to the medical science and profession. AIDS, Ebola — to quote — are some of the instances.

Every other day new and newer medicines and drugs flood the market with remarkable results. But there is no dearth of instances in which the wonder medicines and drugs — no need to name them — had to be withdrawn and banned because of their serious adverse effects on human beings. There are reports that some drugs banned in USA and Europe,  continue to be prescribed and sold in the Indian market.

There is no gainsaying the fact that research in every field — medicine included — cannot dissect itself from the desire to earn, besides serving ailing humanity. That is why pharmaceutical companies and those engaged in experimenting for discovery of new and newer medicines with better and quicker effects on the sick rush to be the first and pioneer in the field. In the process, many a times, the long-term adverse effects of administering of such medicines on the sick surface, the consequences which manufacturers inadvertently or otherwise seem to have been overlooked. These startled the medical practitioners and the patients alike.

This situation certainly amounts to playing with the life of unsuspecting human beings dying for fast and instant relief and, in the process, pushing them to greater suffering in the long run. This virtually amounts to luring them into purchasing at great cost one medicine to get relief from one ailment to contract for free two other diseases as side effect.

The authority which approves introduction of a medicine for a particular ailment should make it mandatory for the companies engaged in research for newer medicines and drugs to indicate any side effects of its use on the basis of their experiments on human beings. No medicine should be approved which has side effects of any kind in the immediate or long run. The objective of research in medicine is to alleviate the suffering of humanity and not to cure one disease to prepare it for more suffering.

The company whose drugs and medicines consumption leave a debilitating effect on human beings need to be punished under the law.

‘Godse’ no longer an unparliamentary word : LS Speaker undoes an old wrong Better late than never

Godse' no longer an unparliamentary word - Sumitra MahajanOur politicians can safely be accused of acting in a huff in a fit of sentimentalism losing and ignoring sense of logic. One such instance was declaring the word “Godse” as unparliamentary.

Within just over five months of India gaining freedom and the wounds of partition being yet very fresh and bleeding, the unfortunate assassination of the Father of the Nation severely rattled the nation and the nascent free government like an earthquake, rudely shocked and benumbed, There was an unconfessed but inherent feeling at having failed to take adequate measures and precaution to provide security and save the life of Bapu.  In this abnormal situation the administration woke up to appear to be rising to the occasion and doing something drastic and strong.

The administration swung into action. It banned the Rashtriya Swayam Sevak Sangh  (RSS), arrested its supreme leader sarsanghchalak M. S. Golwalkar “Guruji” charging him an accused in the Gandhi murder and arrested thousands of RSS workers. It took not long before the Nehru government had to withdraw the charges against Guruji having failed to link Guruji to the case, lift the ban on RSS and release the arrested workers.

It was in this background that the word “Godse” was declared unparliamentary. The reason was that one Nathuram Godse was involved and later sentenced to death for the Gandhi murder.

Godse was the surname of Nathuram and every Godse or Nathuram could not be seen as a criminal. In Punjab and some parts of Haryana the name of the village is the surname of every resident of that village irrespective of his caste or creed, like Kairon, Badal, Dhindsa, Majithia and the like. It was a queer logic to declare a particular surname as a word unparliamentary.

Numerous individuals, ministers and politicians have, in the past, been convicted of murder, rape, corruption and other heinous crimes. But that cannot render the political party they belong or their caste, name or surname to be considered as  culprit and their names being declared unparliamentary.

The Lok Sabha speaker has taken the right decision in right spirit. It has taken more than 60 years to undo the wrong. But better late than never.  ***

 

By – Amba Charan Vashishth

The writer is a Delhi based political analyst.

An Unnecssary & “Unfortunate” Controversy on Judges’ Conference & PM’s Dinner on Holy Days

The Other View

 

By Amba Charan Vashishth

dattu

 

A Conference of Chief Justices of High Courts which is also attended by chief ministers of States had been an annual affair. It was only since 2009 that the practice was, for some reason or the other, discontinued. The last one was held on April 5-6, 2013.  What makes news is the controversy raised by a Supreme Court judge over these being timed with the Good Friday holiday on April 3 and Easter celebrations on April 5.

 

Being spiritual and religiously committed to one’s faith is something that should be applauded and appreciated. It is erosion of this religiosity that is the cause of many of our maladies eating into the vitals of the nation and the world.  It is not mandatory for all the invitees to attend. Yet, it becomes an administrative obligation to do so. Not all the judges and the CM attend it. To attend or not a meeting or to join a lunch/dinner is a matter between the person inviting and the invited even if a public one. In the instant case, while all Supreme Court judges are invited, the attendance of only the top three apex court judges — the CJI and two senior-most judges, in this case Justice T S Thakur and Justice A R Dave — is mandatory. A judge’s birthday or even a wedding in family could have coincided with the meeting and he may want to be excused. No offence involved. There could be unavoidable reasons and circumstances which compel a person to keep away although he very much yearned to mark his presence. At times, one may avoid as a matter of protest. But making attendance or absence a public issue is something unusual and, in the words of the Chief Justice of India (CJI) HL Dattu, “unfortunate”.

Justice  Kurian Joseph had every right to excuse himself from the meeting on Good Friday citing religious reasons. Eyebrows got raised only when he raised hackles against both the meeting and the dinner hosted by the Prime Minister on Easter Day on April 5. How and why did his letters to the CJI and PM go public and viral? Such communications are virtually private and personal. These were certainly meant to convey Justice Joseph’s feelings to both the CJI and PM.

 

The saving grace is that while regretting his inability to attend PM’s dinner on Easter Day, Justice Joseph recalled  the “Indian model of secularism” based on the principle of sarva dharma sambhava (equal respect for all religions)… In India, secularism is not a mere passive attitude of religious tolerance but a positive concept of equal treatment of all religions”, he added. At the same time Justice Joseph was not lost of the apprehension that it may smack of “communalism”. So in his letter to CJI Dattu he was insistent: “Please don’t think that I am striking a communal note.”

 

“Irrespective of the religion, Diwali, Holi, Dussehra, Eid, Bakrid, Christmas, Easter, etc, are great days of festival celebrations in the neighbourhood,” Justice Joseph wrote to the PM, “Your good self would kindly appreciate that no important programmes are held during (these) sacred and auspicious days…..though we have holidays during that period as well.”  He also told CJI that the government had declared April 3 as a holiday because of the spiritual significance of the day. “If the state has declared it a holiday, how can another organ of the state, judiciary, nullify it by making it a working day?”  he asked. In reply CJI Dattu on March 30 said,The question I have to ask myself,  “perhaps I can’t ask you, is whether it is institutional interest or individual interest one should give preference to…I would give priority to former.” Keeping himself clear of the religious content of the controversy he added, “Work is worship”. Contradicting Justice Joseph the CJI went on: “The conference of chief justices had been organized at least on four occasions when it was Good Friday, Independence Day or Valmiki Jayanti….If I have to schedule the conference on a working day, then the chief justices will have to come a day earlier, attend the conference for two days, and then take another day to reach their respective high courts. Four working days of 24 chief justices would be wasted” He and his predecessors, he explained, always preferred to call the conference on an April Friday, whenever it was a holiday.

The CJ conference provides a rare interface between judiciary and executive when former met chief ministers face to face and explained the need for adequate infrastructure and space for creating more courts to tackle the huge backlog of cases and provide speedy justice to litigants.

A public holiday on a day devoted to any religion is as much a holiday for the person of that very faith as to others. Therefore a meeting or a public function organized on that particular day as much pinches the follower of that faith as others because it is an off day for him/her too.

 

When a person joins a public office/service, it enjoins upon him certain obligations whether he is a prime minister, a judge, a police or fire officer or even a clerk or a peon. A public holiday on Ram Navmi, Dussehra, Diwali, Guru Nanak Birthday, Prophet Mohammad birthday, Christmas, Guru Ravidas birthday is, therefore, a holiday for all.  Yet no public servant can refuse the call of duty even on a holiday. If a heinous crime of murder or rape, arson, looting and violence, a serious accident and the like takes place, can the area police officer refuse to rush to the scene claiming it is a public holiday connected with his faith? Can a fire officer refuse to budge on the same excuse when a wild fire is engulfing more and more areas? Even judges are on duty on Sundays and public holidays to attend to urgent matters which cannot wait for the next day.

 

No denying the fact that Easter is a day of celebrations, festivities and feasting. But a dinner by a high dignitary like a prime minister is no less than a feast. Therefore, joining the PM dinner would have meant enjoying the festivities in the august company of a wider family of dignitaries of judiciary and the executive.                                                                    ***   

The writer is a Delhi-based political analyst.

Crime & Punishment

CRIME on the OFFENCE JUSTICE on the DEFENCE

India, no doubt, is a great country. It has a great system of criminal jurisprudence in which an individual/group has a right to commit a crime, heinous included, to run away from the scene of crime and, if caught, the right to claim he is innocent. This exactly is what we call ”choriaurseenazori”.

There are a few instances in which people in the heat of moment have committed crime, even of murder, and then they have voluntarily surrendered before police or courts confessing their crime, even before the police had actually got a whiff of it. At the same time, they have their unchallenged inherent right to resile from their confessional statements in the heat of moment and to claim innocent denying their confession.

Our law also provides alibis and chances to prove themselves juvenile, under the influence of intoxication, depression, provocation or other mitigating circumstances to prove their innocence or seek punishment lesser stringent than the extent of their crime due under the law.

Even when a case of murder is proved against a person, he can be sentenced to capital punishment only, as the Supreme Court has decreed, if the case falls in the category of ”rarest of the rare” in the opinion of the concerned learned court.
On the one hand, we all – the executive, the legislature, the judiciary, the media and the people – are one in the need for dispensing quick justice to the victims of the heinous crime of rape and on the other, our courts are showing leniency and consideration to the accused. The latest is the case in which the Supreme Court (SC) on January 29, 2013 ruled that the man who had raped his minor daughter and killed her and his wife and who had been sentenced to death, need not be sent to the gallows ”as the crime did not fall under the rarest of rare cases”. The SC further said that ”his reformation is not foreclosed in this case.”

An SC double bench set aside the death sentence, awarded by trial court and upheld by the Punjab and Haryana High Court, saying that the convict was feeling frustrated because of the attitude of his wife and children.

The history of the conduct of the convict Mohinder Singh speaks otherwise and does not inspire confidence that ”his reformation is not foreclosed”. He committed the crime while on parole from jail where he was undergoing a 12-year sentence for raping his 12-year-old daughter. In January 2005, he came out on parole and killed his wife who was a witness to the rape, and the daughter he had raped.

A father raping his daughter and killing her and his wife, a witness to the crime, needless to say, is not a daily routine but a rarest of the rare heinous crimes in India. That the convict was ”feeling frustrated because of the attitude of his wife and children” does not mitigate the intensity of his crime. On the contrary, it only shows that the father did not appear to be ashamed and repentant for the sin he committed and instead wanted his wife and daughter to be a conspirator in his crime and save him by telling a lie in the court. His conduct during his parole itself belies the hope that ”his reformation is not foreclosed in this case”.

Juvenile hardcore criminal
No less astonishing is the report that the ”most brutal” accused in the gang-rape and killing of a paramedical student Nirbhaya in New Delhi last month has been declared a ”minor” by the Juvenile Justice Board on January 29 on the basis of the date of birth on his school certificate and ordered his trial under the Juvenile Justice (Care and Protection of Children) Act. The Board also rejected the plea of the Police for bone certification test of the accused to determine his age.

This suspicion got further strengthened by a Times of India story which on February 01 quoted the mother of the accused who claims to be juvenile saying: ”I have no idea regarding either the day or date of admission. I just went to the school and told the teacher that this is my child, he is five years of age, write down his name. They started teaching him after that.” And yet our Juvenile Justice Board has blind faith in the school certificate that shows the age of the accused.

The decision based on ”school certificate” is open to question because everyone knows that in India, for various reasons, parents of children have been getting birth certificates of their children showing an age less than the actual one. The ”bone certification” would have been more scientific and reliable.

It is ironic that a person who allegedly committed one of the most heinous crimes, which even a hardened criminal would have dreaded to perform, should be dispensed Care and Protection reserved for juveniles. We need to distinguish between juvenile delinquency and juvenile crime. Juveniles have been dispensed care and protection because their crime was not heinous but could be considered a delinquency like a child playing with a knife accidently killing another child or pushing a fellow child without realizing that his act could cost a life or a child playing with fire incidentally causing a great inferno resulting in huge loss of life and property. These may be crimes but seem to have been inadvertently committed with no set motive. But that is not the case of this juvenile accused in Nirbhaya gang-rape and murder. One has to go by the enormity of the heinous crime and not by the age of the culprit.

This gives another indication of the kind of justice and the criminal jurisprudence we have. This stands in the way of justice. It fails to punish the culprit because it itself raises many ifs and buts in the smooth way of handing out punishment to the person guilty of a crime. The loopholes in the justice system only help the accused and not the innocent and the aggrieved in his quest for justice.

Justice should not only be dispensed but also appear to have been dispensed. It is absence of this scenario that is prompting people to take law into their own hands and dispense justice themselves there and then.
The writer is a Delhi based political analyst and commentator.