Friday, January 29, 2010

The problems of mai-baap culture

This is the kind of news which tells what is wrong with the way things work or rather not in India. A woman who booked ticket in first class coupe for purpose of safety was assaulted and molested by other passengers in same coupe who probably were 'more powerful' in some way, or so they thought at least!

Twenty-eight-year-old Alka decided that for her journey home from Patna, a first-class ticket on the Rajdhani was worth it. After all, she was returning alone to Delhi.

In the middle of the night, however, two men who were travelling in the same coupe allegedly molested her. Ironically, the offenders were on the train to guarantee the safety of another woman, Jyoti Kumar, a Congress politician from Aari in Bihar - who was travelling in another coupe near Alka.

Really, it is a reflection of the power structure of Indian society -- a mai-baap culture in which you can feel secure not by following the law and rules but only by being under wings of someone more powerful. And of course, the fundamental problem with a mai-baap driven culture is that someone you have placed your trust in should not turn from protector to predator.


The Rajdhani is meant to have four armed commandos from the Railway Protection Force patrolling the entire train. There was no sign of them while she was being assaulted. Alka shouted out for help. That summoned Jyoti Kumar, the employer of the guards.

Kumar allegedly responded to Alka's SOS by beating her. This version of events is confirmed by other passengers. Though the politician says, "I did not beat her. It was she who assaulted me."

This if true is the real crux of the problems in a power driven society. The politician thought it fit to protect her own guards than stand for justice and rule of law. Because only then can she command the respect and loyalty of her own guards. Otherwise they may think that she has left them in the lurch and not fit to be their employer or protector!

Tuesday, January 26, 2010

Justice Shylendra Kumar rues about corruption in judiciary

Justice Shylendra Kumar of Karnataka High court takes stock of the situation in country on 26th Jan, Republic Day on his personal blog:

Interestingly, he is of the opinion that both Executive and Judiciary have failed people, but some flashes of hope are seen from Legislature.

Excerpt here:
A vocal and aggressive Executive Government is attempting to regulate and takeover Judiciary even by corrupting the Judiciary. An inept and corrupt Judiciary is playing second fiddle to the Executive. It is only the legislature albeit corrupt, rudderless and inefficient, has nevertheless on an occasion or two, has adhered to its assigned role, has occasionally flashed sparks of brilliance by competent performances, is holding out a ray of hope!

Comments:Let's hope the body and limbs also start to move in coordinated fashion if the brain is doing some things right.


Though all three organs of the State have miserably failed in playing their respective roles, the real hope and strength, is emanating from the goodness of the common man of the country, the right values the common man of the country has, a nascent, intrinsic perception of rights and wrongs, which is imbedded in the psyche of every citizen of this country, that sustains an optimist like me.

Comments: This is the real hope. If we, the people give power to ourselves, and act in a powerful way for benefit of nation, only then we can deserve to live in a just nation.

Further he says...

I am of the opinion that amongst the three organs of the State, Judiciary has to take the major share of the blame, as the Judiciary by not being alright and upright by itself, has failed to check and keep the other two organs of the State in control and in the right mode.

Comments: What is sad is that common person is scared of accessing judiciary, leave alone police. There is a saying that justice should not only be done, but it should also be seen to be done. Maybe it is right time for people in judiciary to rise to the occassion, and give the confidence to Indian public that they will uphold justice in its fullest sense, and not merely go through motions of legal procedures.

Saturday, January 23, 2010

Justice is coming for undertrials, if intentions are to be realized!

UPA govt and Law minister Moily has recently made the mother of all promises, i.e., to get 75% of undertrials out of prison by 31st Jul 2010.

Excerpts from the news:

The UPA government is setting a six-month deadline, starting January 26, for the release of 1.25 lakh of the 1.7 lakh undertrials languishing in jail though booked for petty offences and despite having served a major part of the prescribed maximum sentence.

Comments: It is interesting why no govt before thought of an easy solution like this.

Further, some statistics on population in jails and that of undertrials:

India has around 1,500 jails having a capacity to lodge 2.5 lakh prisoners. But these house as many as 3.5 lakh inmates. As many as 70% of the jail population comprises undertrials, which means their number could be pegged at 2.45 lakh. As 70% of the undertrial prisoners are booked for petty offences, this category of population in jails would be 1.7 lakh.


"I have requested the chief justices of all high courts to instruct the district courts to do everything possible under the Criminal Procedure Code and other laws to ensure that those languishing in prison unnecessarily be forthwith released," he said.

Comments: Nice intentions. It is moot point how the courts which are said to be overburdened with cases will handle these new cases. Read here about lack of judges in high courts.

Asked how so many undertrial prisoners could be released within six months, he said there are many ways to achieve the result -- plea bargaining system in which the undertrial accepts guilt and the court records conviction and releases him by sentencing him to the period of imprisonment already undergone, expediting their cases by holding trial on a day-to-day basis, holding court proceedings inside the prison premises or through video-conferencing.

Comments: Plea bargaining has been there on paper since CrPC amendments of 2005, notified in 2006. It is not so simple that you ask a prisoner to agree to a lesser charge etc, and if he agrees, and court also says yes; then everybody is happy and they go home. Under Sec 265C of CrPC, specific guidelines have to be followed for plea bargaining in which public prosecutor, accused, victim, and courts are involved. So a defined court process is inovlved here too.

About expediting trials on day-to-day basis, that is like asking a wish from genie in the bottle. If that could be done, then what is currently stopping courts from having day to day trials?

To ensure that there is no hitch from the government side, the law minister has divided the country into various zones and put an additional solicitor general in charge of each to see that the first actual legal reform by way of releasing undertrials becomes successful.

"Guidance to the ASGs would come from attorney-general G E Vahanvati and solicitor-general Gopal Subramaniam," Moily said.

Comments: All of the said measures like writing to chief justices, ASG, dividing into zones, and so on smack of a high-level approach handed from top levels of govt and judiciary to levels below. There is no clarity on how the lower courts, police, prosecutors will be involved in such a massive undertaking. Till that happens, it can be treated more like a nice wish of the UPA govt and law ministry.

Friday, January 22, 2010

Brand new, better, faster Dowry Law for you... any takers?

Much news has come out recently about proposed amendments to Dowry Prohibition Act, or DP Act in short.

My eyes must have widened in amazement, when I read some of the interesting provisions of the new DP act.

e.g. here is the provision which says it is mandatory to maintain list of all gifts exchanged, or go to jail.

The ministry of women and child development (MWCD) is planning to make it mandatory for the families of the bride and the groom to maintain a list of gifts and other exchanges made at the time of marriage. The Dowry Prohibition Act (DPA), 1961, will be amended to provide it with more teeth while plugging loopholes that allow women to misuse the act.

The list, in the form of a sworn affidavit, has to be notarised and signed by a protection officer or a dowry prohibition officer. Both the parties will have a copy of the list. The punishment for lapse is heavy, including a three-year jail term, not only for the bride and the groom but also their parents.

Comments: Right now even all marriages are not registered in India. In many places, you will have to give bribe just to get that marriage certificate. There are many child marriages in rural India, so registration of marriage in such cases is quite impossible, since no one will try to register a marriage, which is illegal to begin with.

Now, even if we were to assume that all the infrastructural issues in registering of marriages could be fixed, and on top of that new infrascturcture could be created by hiring more dowry prohibition officers, buying computers, databases, filing systems, and what not; isn't it slightly over the top to think that things will become hunky dory so easily and dowry problems will be solved?

Has any study been done on why dowry giving/taking has only increased even after propagation of so many anti dowry laws like DP Act, IPC 498a, and so on. Even communities where dowry was not prevalent now are following this custom.


The amendments include lesser penalty for dowry givers; allowing a woman to file a case where she resides permanently or temporarily; including parents and relatives of the bride as aggrieved persons who can complain; and linking the Protection of Women from Domestic Violence (PWDV) with the dowry laws for quick relief.

Comment: It is always amusing to read the words "quick relief" in context of Indian judicial system. By some magic wand of proposals, just by linking PWDVA with DP Act, somehow quick relief will be ensured under DP Act. Never mind that no serious study would have been done on how quick is the relief under PWDVA itself! Make more laws, and you make more money for lawyers if not anything else.


For a change, this amendment has also been welcomed by the men’s organisations. “This saves even the man from getting caught in false dowry cases,” said Virag Dhulia, of Save Indian Family Foundation, an organisation of harassed husbands.

False cases is a different problem than existence or absense of provisions in a particular act. The Indian laws relating to perjury are hardly applied by courts, so it is a free-for-all in terms of allegations that one can make and get away with them.


Among other amendments, the ministry has also proposed a lighter punishment for dowry givers since a five-year imprisonment was acting as a deterrent for the girl’s family to complain. The amendment seeks one-year imprisonment for dowry givers unless they prove that they were compelled. Tulsi agreed that this would encourage more parents to come up and complain.

“Parents are often compelled to pay dowry to ensure the security and happiness of their daughter in her matrimonial home. Hence, the giver and the taker of dowry cannot be placed on the same footing under the law,” the NCW clarified.

Comments: The WCD and NCW seem to be animated by the same spirits that believe that more we tinker with the laws, the better. Crush the dowry takers, but go easy on dowry givers! Further it smacks of the arrogance that laws can do some kind of social engineering and change the society's attitudes. In any case, treating dowry givers and takers differently is like saying -- Let the pimp be let off lightly, but you must punish the prostitute! A paradise for lawmakers.

Mr Moily needs to do refresher course in Family law

Law minister Moily has been in news ever since he became, well, law minister. He has been making all the right noises like: make fast-track courts, finish pending cases within 3 years, decide divorce cases within 1 year, reduce pendency of cases, accountability of judges, and so on.

Only time will tell whether all or any of these can materialize. My best wishes to him if he is sincerely doing all these things, rather than just making tall promises to an Indian public which has grown highly suspicious and cautious of courts, lawyers, and police.

But in a recent interview, it was perplexing to read when he says Indian family laws (matrimony, divorce etc) are slightly biased towards men. Hellooooo? If you read Hindu Family Law, then it is clear that almost all of the sections are worded in gender-neutral way, e.g. HMA 24 on maintenance during court proceedings can provide maintenance to needy party, be it wife or husband. Of course given practical situations, it is used mostly by wives. Many other sections especially related to maintenance, e.g. HAMA 18 are specifically meant to provide maintenance to wife/children with man/husband having the sole responsibility.

This is the excerpt of interview with Mr Moily:

There is also some talk about your attempts at improving gender equality in Indian laws. Could you elaborate?
There are many laws in the country that are in favour of men and put women in a disadvantageous position. We are trying to set that right.

In adoption, women sometimes face a problem. In divorce petitions when one spouse holds up marriage, the other cannot marry again. I am trying to sanitise Acts which have a gender bias. Indian laws are skewed in favour of the man to a certain extent, which needs to be corrected.

Comments: Either Mr Moily should come in the open with the list of such biased laws, or stop giving utopia like statements to media who will lap it up and publish it for the 'benefit' of public. Such a statement could only mean that the law minister has forgotten much of the law which he once practised as a lawyer.

Even supreme court judges had asked a man to wait for few more months who has been fighting to get divorce from wife for 17 years. All this after he was acquitted of charges like "he bathes like a dog" from his lovely wife (on paper). Such is the so called 'bias' in law and judiciary towards men.

So it is clear that neither Indian laws, nor Indian judiciary has bias towards men. It is the judicial system where the needy will always get crushed under the weight of bureaucracy, inefficiency, corruption of legal and judicial fraternity, and so on.

Friday, January 15, 2010

Thumbs up to Delhi HC: Supreme court credibility ... further down the slopes

The Delhi High Court on Tuesday reinforced its earlier verdict that the office of the Chief Justice of India (CJI) was within the purview of the Right to Information (RTI) Act.

Comments:What was a single judge order of Delhi HC has not got the stamp of approval of a 3 judge bench of Delhi HC.


The apex court registry is likely to challenge this judgment before the Supreme Court.
A three-judge bench comprising Chief Justice A P Shah and Justices Vikramjeet Sen and S Muralidhar said that the CJI cannot be said to have a fiduciary relationship (between a trustee and a beneficiary) with other judges.

Comments: Now the options of the Supreme Court are to appeal against this decision, and finally to get its back broken completely! Because even if they win somehow in appeal to Supreme Court, sooner or later a law or mechanism will be passed to break this nexus where asset declaration of judges to CJI are being held like they are a top-secret information. History will judge the decision to appeal to SC as a very absurd one at best.


According to the bench, judges of the superior courts should make public their assets as they were not “less accountable” than the judicial officers of the lower courts, who were bound by service rules to declare assets.

Comments: So if you are still in doubt if judges of lower courts are bound to do more disclosure, here is presented a quote from Justice Shylendra Kumar's article on RTI for judges' disclosure of assets (here):

In fact, it is a misnomer to think that the judges of the superior courts are not ready to disclose their assets. The judges of the High Courts are appointed after being drawn from the Bar or on promotion from the subordinate judiciary in the ratio of 2: 1 which means that for every promotee judge, there will be two judges appointed directly from the Bar. Judges promoted from the subordinate judiciary happen to be occupants of the post of district judge and every district Judge is required to declare his/her assets every year, as part of the conditions of service. The judges drawn from the Bar and appointed to the High Courts would all have disclosed their income for the previous five years. This is an essential requirement.

Signing Hague Convention is the right thing, crying about NRI brides is not!

National Commission for Women (NCW) has asked government to sign international convention of Hague, ostensibly to protect NRI brides.

Sat, Jan 9 06:42 PM New Delhi, Jan 9 (PTI) The National Commission for Women today asked the Indian government to sign the international convention of Hague on laws of marriage as well as safety of women to help protect NRI brides. Speaking at a seminar on women''s issues at the Pravasi Bhartiya Divas here, NCW Chairperson Girija Vyas said, most of the cases of divorce and separation of NRI brides create problems as the laws of the land are different in India and in the country where these women live.

Comments: Only problem with above statement is that justice is quick and transparent in foreign countries... Only in India a divorce can take 17 years and still Supreme court judge will condescendingly advise the husband to wait for a few more months since he has waited for 17 years.

The real story is that signing the Hague convention is the right thing to do, and better to do it late than never. It has been triggered by the fact of recent cases coming to Supreme court where SC had to send the parties back to foreign courts since India is not signatory to Hague convention. For example, recently there was a recent high profile case which went to Supreme Court, about a child Aditya Vora whose joint custody granted by US courts to NRI father was violated by mother who had come with child to India and had gone missing with the child. Eventually the Supreme Court had to ask CBI to trace the child. Read here.

If India was signatory to Hague convention, the mother would not have been able to violate US court orders with such impunity. And the child will not unnecessarily have to travel to US and then back to India, just because Indian supreme court is helpless!

Former SC Judge and chairman of the Law Commission of India A.R.Lakshmanan has strongly recommended that India should sign the Hague Convention at the earliest. Signing Hague Convention will strongly discourage either of the warring spouses from indulging in cross border parental child abduction. Read here.

Fast track justice in 4 or more years, shine India shine

A case of rape and murder of a working woman in Bangalore few years back has been going on in Fast Track court for 4 years now. The case had made much headlines and concerns were raised over safety of working women, especially those who work in night shifts.

Excerpt from news below with emphasis mine:

When TIMES NOW's editor-in-chief Arnab Goswami put forward the question in Newshour, whether judges of the fast track courts should also be questioned on why cases such as Pratibha's were allowed to extend beyond the stipulated time of 6 months, noted lawyer and human rights advocate Soli Sorabjee said one recourse for the affected parties against the "granting of adjournments for the asking" would be to approach a higher court to seek speedy redressal. Union Law Minister Veerappa Moily said: "Even the fast track courts are frustrated with this kind of an attitude. A fast track court meant that a case once taken up for trial should be over within 6 months including judgement. That is what we have proposed in our draft Bill for the Sexual Offences Special Courts Act, the Special Courts Bill 2010.

Comments: You know I have problems with both of the above 2 suggestions.

Regarding Mr Sorabjee's suggestion about approaching higher court in case of adjournments, this is like saying that if the child did not get milk from mother when he cried first time; so he should cry second time, only now with a higher noise! What about the fact that adjournments being granted on flimsy grounds is part and parcel of justice Indian style? Even the recently notified and gazzetted CrPC amendments cleverly did not notify the clause on disallowing adjournments on flimsy grounds! Read here.

Regarding law minister suggestion, I can only say "tussi great ho sir ji! ". If the number of laws were not enough, the remedy for some problem in justice delivery system is to create one more special law for special need to fast-track sexual offences' trial. Just pray if you are a victim of crime in India, it somehow falls under this special act for you to get speedy justice!

Monday, January 4, 2010

CrPC Amendment now gazetted with changes, a full one year later!

Finally after a gap of one year, the CrPC amendments have been notified.

The only problem is, the one amendment which was most useful for common people to escape clutches of powerful people controlling police -- i.e. power of arbitrary arrest by police; HAS NOT BEEN NOTIFIED.

Instead, the 'gift' seems to be that if you fought for 5 years in criminal court against a crime-accused, and he was acquitted by court; then you can appeal against acquittal and run around courts for another 5 years hoping for a conviction this time! What are the chances that someone who got acquitted due to delay, shoddy investigation by police, witnesses not available etc will be nailed the second time?

The New Year will bring a special gift for victims of crime in India. On the second last day of 2009, the government decided to notify a landmark amendment to the Criminal Procedure Code (CrPC), giving victims the right to appeal against a court order acquitting an accused, or convicting the accused of a lesser offence.

Under the amended Sec 372 CrPC, the victim will not need the permission of any law enforcement or prosecuting agency to appeal a court order. Currently, an appeal can be made only if the prosecution so decides.

Now coming to a few other amendments which were of real importance to litigants and public but which were NOT NOTIFIED:

However, the Ministry has decided not to notify two amendments that the lawyers had opposed strongly to CrPC Sections 41(A) and 309.

The amendment to Sec 41(A) barred police from arresting an accused for an offence that carries a maximum punishment of seven years without first issuing him/her a notice of appearance.

Comment: What do lawyers gain from above? You guessed it right. The money they get from arranging bails for people accused in false cases by powerful people who can game the police and judicial system to their advantage.

The amendment to Sec 309, aimed at speeding up trials, disallowed the granting of adjournments on flimsy grounds.

Comment: And what a crime it would have been if adjournments were not granted on flimsy grounds! Justice must be given and seen to be given, but make sure after so many adjournments that any remaining witnesses are untraceable, pass away to heavens, or become hostile just to save themselves trouble!

An important amendment that will be notified is Section 357A, making it mandatory for state governments to draw up a scheme in coordination with the Centre to provide funds for compensation to victims or their dependents. Victims will be entitled to compensation if the offender is not caught and tried.

Comment: Would like to see this one implemented! How state governments will decide the amount of compensation, how much compensation for what kind of victim, and so on. And most importantly, how will funding for the comensation be arranged -- will States and Centre fight for another 4 years (when elections are due) on the funding requirements?

Saturday, January 2, 2010

Is Supreme Court unnecessarily setting legal precedent in rape cases

Is our Supreme Court spending court time on laying down legal gyan and more seriously, legal precedents, where none of the two were required in the first place. On first reading of the news item below about a recent SC judgment, that seems to be the case.

Mumbai: In an observation that could have far-reaching implications in the prosecution of rape cases, the Supreme Court recently observed that an Indian woman would never make a false allegation of rape, given the social stigma attached to it. This is likely to bolster the cases of rape victims and may have a bearing on recent cases involving actor Shiney Ahuja and Shree Ram Mills scion Abhishek Kasliwal.

“In Indian society, any girl or woman would not make such allegations (of rape) against a person as she is fully aware of the repercussions flowing therefrom. If she is found to be false (sic), she would be looked at by society with contempt throughout her life,” the apex court observed.

Upholding the seven-year imprisonment handed out to an auto-rickshaw driver who raped a 12-year-old in 1988, a bench of justices JM Panchal and Deepak Verma stated: “For an unmarried girl, it will be difficult to find a suitable groom. Therefore, unless an offence has really been committed, a girl or a woman would be extremely reluctant even to admit that any such incident had taken place which is likely to reflect on her chastity (sic). She would also be conscious of the danger of being ostracised by society.”

Comments: 7 years is the maximum sentence for rape, and well deserved by the accused for raping a minor. However, if you read the IPC 375 which defines rape, there is no need to go into details of case like whether the minor gave consent or not. The fact that a girl is below 16 years of age makes it as rape in any case.

Section 375. Rape
1[Sexual offences]

1. Subs. by Act 43 of 1983, sec. 3, for the heading "Of rape".

1[375. Rape.
A man is said to commit "rape" who, except in the case hereinafter excepted, has sexual intercourse with a woman under circumstances falling under any of the six following descriptions: -
Sixthly: - With or without her consent, when she is under sixteen years of age.

Mincing no words to describe the social stigma faced by rape victims in India, the judges said, “It would be difficult for her to survive in Indian society which is not as forward-looking as the western countries are.”

If the observations of the apex court are applied by the prosecution in the cases of Ahuja and Kasliwal, they may have to brace themselves for a tough trial ahead.

While Ahuja’s trial against rape allegations made by his 20-year-old maid in June this year is yet to begin before the Sewri fast track court, charges have been framed against Kasliwal for raping a 52-year-old woman in March, 2006.

“The judgment can be relied on by the prosecution or the defence in any of these trials but how the sessions court will interpret it cannot be predicted as the facts of each case will vary,” criminal advocate Rohini Salian said. Since this precedent has been laid down by the Supreme Court, it is likely to be cited in rape trials before subordinate courts, she added.

“The court conducting the rape trial can certainly take these observations into account while appreciating the rest of the evidence before it,” said senior advocate Amit Desai. He, however, added that the Supreme Court’s observations alone cannot lead to conviction. “Their weightage may differ according to the totality of the facts and the defence taken by the accused,” Desai said.

Twenty-one years after the incident, the appeal of Wahid Khan, who was caught ‘red-handed’ by the police in Bhopal, was dismissed by the apex court. Under the guise of rescuing the girl from eve-teasers, Khan gave her a ride in his auto-rickshaw and took her to a deserted location where he raped her.

The apex court also took note of the fact that the girl’s statement had been consistent in her FIR as well as before the court. Moreover, the sub-inspector of police, BB Subba Rao, had told the court that when the accused was caught he and the girl were both naked waist-down.

The court held that the consistent statement of the victim and the testimony of the police officer who caught him red-handed had established the guilt of the accused.

Comments: So what was the need for Supreme court in giving so much gyan, or worse, giving scope for precedent setting in rape trials given that SC judgment has "binding precedent" effect on lower courts? It is already clear from the evidence etc that rape was committed. Now you are trying to tell the world why or under what circumstances a rape victim will or will not tell lies? Is this not an injustice to the victim in this case itself, when the law of the land clearly says it falls under rape, then where is the need to bolster the case on behalf of victim ? Or is it about some kind of fantasy where law can be created by the stroke of a judgment given by Supreme Court?

Law Minister Moily talks tough on new molestation law, where's the bite!

Wasn't my country already so beautiful, that we need more and more laws to protect the weak and downtrodden! Now there is a proposal to make molestation into a cognizable and non-bailable offence. A cognizable offence means that police can arrest without warrant. A non-bailable offence means that bail is not matter of right of the accused but can be granted by judicial magistrate. For more information on bail read here.

Previously the maximum jail term for molestation was 2 years. I would first like the government to give statistics on molestation cases filed all over India, and percentage of convictions, along with amount of jail term. If you guessed it by now, such statistics don't exist; or the government cannot be bothered anyway by previous experiences and statistics! After all -- the weak must be protected. And what better way to do that than increase the punishment and make it non-bailable, never mind the conviction rates, and the fact that a recent molestation case in the country took 19 years to decide!

Here is the news with my comments:

The government will soon make molestation a non-bailable offence, increasing the maximum imprisonment for the crime from two to five years.

The draft Sexual Offences (Special Courts) Bill, 2010 — prepared by the law ministry — and currently awaiting the home ministry assent, also defines what constitutes molestation much more sharply than at present.

It proposes allowing the police to arrest a person accused of the crime without a warrant. A simple complaint from the victim will be enough.

Comments: And what is proposed to be done if the complainant happens to be a 14 year old girl, and the accused happens to be a high-ranking police official? Will you arrest the police official immediately and throw him behind bars based on the simple complaint? Or will it require permission from government to prosecute the police officer?

“Tough measures are required to deter sexual offences against women,” Law Minister M. Veerappa Moily told Hindustan Times. “Following the shocking Ruchika case, it is clear that molestation needs to be treated as a serious sexual offence as rape.”

Comments: Holy intentions all these! Except for the fact that the record on conviction for rape cases itself is not good. So what great expectations can public have merely from passing of a law which makes molestation as serious as rape!

The bill seeks to modify relevant sections of both the Indian Penal Code and the Criminal Procedure Code.