Supreme Court takes Suo Moto Cognizance to Assess the Implementation of Rape Laws-Frames a series of Questions for States and Union Of India to Reply

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Taking suo motu cognizance on the assessment of the criminal justice system regarding sexual offences, the Supreme Court on Wednesday sought a reply and status report from all the states and High Courts on aspects such as investigation process, collection of evidence, recording of statement of victim and time frame for trial. Taking serious note of the rising number of rape cases in the country, the apex court underlined the need to collate information and status reports to ensure holistic implementation of the provisions of the rape law.The top court also appointed senior advocate Siddharth Luthra as amicus curiae for assistance in the matter.

Citing the delay in the verdict of the December 2012 gangrape case, the Supreme Court said: “The December 2012 rape case shocked nation’s conscience; delay in such matters created agitation, anxiety, and unrest in the minds of people.”

This comes two days after CJI SA Bobde appointed a committee of two Supreme Court Judges for ensuring speedy disposal of rape cases across the country. The Committee consists of Justices R Subhash Reddy and MR Shah. The CJI had constituted the panel in the exercise of his administrative powers for the purpose of monitoring of the cases through the High Courts to ensure their speedy disposal in a time-bound manner.

IN RE : ASSESSMENT OF THE CRIMINAL JUSTICE SYSTEM IN RESPONSE TO SEXUAL OFFENCES SMW (CRL.) No(s).04 OF 2019

  1. Post Nirbhaya incident, which shocked the conscience of the nation, many amendments were introduced in criminal law redefining the ambit of offences, providing for effective and speedy investigation and trial. Still, the statistics would reveal that desired results could not be achieved. As per the latest report of National Crime Records Bureau of Crime in India in the year 2017, total 32,559 cases of rape were registered in India.
  2. The delay in such matters has, in recent times, created agitation, anxiety and unrest in the minds of the people. The Nirbhaya case is not an isolated case where it has taken so long to reach finality. In fact, it is said that it has been one of the cases where agencies have acted swiftly taking into account the public outrage.
  3. We are, therefore, of the view that it is necessary to take stock of the implementation of provisions of criminal law, including the said amendments, relating to rape cases and other sexual offences. It is necessary to call for information with regard to status of affairs at ground level from various dutyholders like investigation agencies, prosecution, medico-forensic agencies, rehabilitation, legal aid agencies and also Courts to get a holistic view to make criminal justice system responsive in the cases of this nature.
  4. The criminal law is set into motion by registration of the FIR. Section 154 of the Cr.P.C. provides about the information in cognizable cases and in effect registration of First Information Reports. The first Proviso to the sub-Section (1) of Section 154 inserted by the Amendment Act of 2013 and subsequently amended by the Amendment Act of 2018, provides for registration of First Information Report in cases of rape and sexual offences by a woman police officer or any woman officer. It is further provided that if the victim is temporarily or permanently mentally or physically disabled, the first information shall be recorded by a police officer, at the residence of the person seeking to report such offence or at a convenient place of such persons choice, in the presence of a special educator or an interpreter and the recording of such information may be videographed. It is also provided that the police officer shall get the statement of such person recorded by a Judicial Magistrate under Section 164, as soon as possible.
  5. As law laid down in the case of Lalita Kumari v. Government of U.P., (2014) 2 SCC 1, the police is dutybound to register the offence based upon the information given by the victim/informant in case of cognizable offence. In addition to this, the statements of the victim under Section 161 are required to be recorded by a woman police officer or any woman officer.

Thus, we consider it appropriate to call for status report with regard to the following: –

(1) whether all the Police Stations have a woman police officer or woman officer to record the information of the victim?

(2) In case, an information relating to offence of rape received at a Police Station, reveals that the place of commission of the offence is beyond its territorial jurisdiction, whether in such cases FIR without crime number are being recorded?

(3) whether provisions are available for recording of first information by a woman police officer or a woman officer at the residence of the victim or any other place of choice of such person in case the victim is temporarily or permanently mentally or physically disabled?

(4) whether all the District Police Units have the details of special educator or an interpreter in case of a mentally or physically disabled victim?

(5) whether the police department of states or union territories have issued any circulars to make provision of videography of the recording of statements and depository of the same?

(6) whether any state has published guidelines in the shape of Standard Operating Procedure (SOP) to be followed for responding after receipt of the information relating to case of rape and similar offences?

  1. By the Amendment Act of 2013, a new provision of Section 166A made the failure of a public servant to record any information of such offences, as prescribed, under sub-Section 1 of Section 154 of the Cr.P.C., a punishable offence, prescribing both rigorous imprisonment and fine for the guilty.

Thus, we consider it appropriate to call for status report with regard to the following:-

(1) whether any case has been registered under the Section 166A of IPC against any public servant?

(2) whether there is any mechanism in place to complain about the non-recording of information by the officer giving cause to offence under Section 166A with any other institution/office, other than the concerned police station?

  1. Medical treatment and examination of the victim is a very important aspect not only for the immediate relief to the victim but also provides intrinsic evidences for the trial. Amendments in this regard have been inserted by the Amendment Acts of 2013 and 2018, whereby the newly introduced Section 357C of Cr.P.C. has sought to fix liability on medical institutions, both public or private to provide medical treatment free of cost to the victims of such offences as prescribed, together with a duty to inform the police of such incident. Failure to comply with the above provision has also been made an offence punishable under Section 166B of IPC.

Thus, we consider it appropriate to call for status report with regard to the following:-

(1) whether any advisory or guidelines have been issued by the authorities to all the hospitals and medical centres in this regard?

(2) whether any case has been registered against any person under Section 166B of IPC?

  1. The manner in which the medical report of the victim is prepared is also a matter of concern. The Amendment Act of 2013 has inserted a new provision, i.e. Section 164A in this regard, which provides for the manner of medical examination as well as the guidelines for preparation of medical report. Other than the above information, many a times valuable information in consonance with the definition of rape as amended by the Act of 2013 are not supplied.
  2. Also, vide the Amendment Act of 2013, Section 53A was inserted in the Evidence Act, 1872. It provides that the evidence of character of the victim and of such person’s previous sexual experience with any persons shall not be relevant on the issue of such consent or the quality of consent. The effect of above provision is that previous sexual experience and in effect the habituation to sexual intercourse is now irrelevant for the purpose medical examination. Still, we come across the medical opinion such as “the victim is habitual of sexual intercourse” and the opinion suggesting possibility of consent on the basis of her previous sexual exposure.
  3. The Ministry of Health and Family Welfare, Government of India had prepared “Guidelines & Protocols: Medicolegal care for survivors/victims of sexual violence”.
  4. The Ministry of Women and Child Development has designed a Medical Kit for examination of the victim and the accused in cases of rape. The Union Government and the State Government have not provided this medical kit to all the Primary Health Centers or Community Health Centers. This Medico Forensic Kit is essential for collection of Medical/DNA evidence.
  5. Further, Per-Vaginum examination commonly referred to as ‘Two-finger test’ has been held to be of no consequence and violative of the dignity of woman. In the case of Lillu alias Rajesh and Anr. v. State of Haryana, (2013) 14 SCC 643 it was observed as follows:-

“In view of International Covenant on Economic, Social, and Cultural Rights 1966; United Nations Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power 1985, rape survivors are entitled to legal recourse that does not re-traumatize them or violate their physical or mental integrity and dignity. They are also entitled to medical procedures conducted in a manner that respects their right to consent. Medical procedures should not be carried out in a manner that constitutes cruel, inhuman, or degrading treatment and health should be of paramount consideration while dealing with genderbased violence. The State is under an  obligation to make such services available to survivors of sexual violence. Proper measures should be taken to ensure their safety and there should be no arbitrary or unlawful interference with his privacy. Thus, in view of the above, undoubtedly, the two-finger test and its interpretation violates the right of rape survivors to privacy, physical and mental integrity and dignity.”

Thus, we consider it appropriate to call for status report with regard to the following:-

(1) whether the Medical Opinion in the cases relating to rape and similar offences is being given in compliance with the mandate of Section 164A of Cr.P.C.?

(2) whether the Medical Opinion in the cases relating to rape and similar offences is being given in tune with definition of rape under Section 375 of IPC as it stands today?

(3) whether the states have adopted the Guidelines & Protocols of The Ministry of Health and Family Welfare, Government of India or have they prepared their own Guidelines & Protocols?

(4) whether requisite Medico-forensic kit are available with all the hospitals/health centres run by the Government or by local authorities?

(5) whether the medical experts have done away with the Per-Vaginum examination commonly referred to as ‘Two-finger test’ and whether any directions have been issued by the states in this regard?

(6) whether medical experts have done away with the practice of giving opinion on the previous sexual experience of the victim or any directions have been issued by the states in this regard?

(7) whether lady medical practioners, if mandated, are available at all district and sub-divisional headquarters to draw up the medical examination report of the victim?

  1. Forensic examination and report play an important role during the investigation as well as trial for linking the culprit with the crime. With the advancement of the DNA science and its accuracy, the sampling for the purpose of Forensic examination and expeditious reports after due examination are vital to the just adjudication of the case. The sampling for the purpose of DNA test as well other forensic tests like forensic odontology is essential in cases relating to rape.
  2. In relation to the examination of the accused, Section 53A of Cr.P.C. provides for timely examination and guidance for preparation of medical report.

Thus, we consider it appropriate to call for status report with regard to the following: –

(1) whether there is any Standard Operating Procedure (SOP) or Protocol for taking samples for Forensic DNA, Forensic odontology and other forensics for Medical Practitioners?

(2) whether there are adequate number of equipped Forensic Laboratories at least one at every Division Level to conduct forensic DNA and Forensic odontology analysis regionally?

(3) subject to availability, whether Central Government has notified sufficient number of Government scientific expert other than already specified under Section 293 of Cr.P.C.?

  1. Section 173 (1A) Cr.P.C. provides that the investigation in relation to an offence under Section 376, 376A, 376AB, 376B, 376C, 376D, 376DA, 376Db or 376 E of the Indian Penal Code (45 of 1860) shall be completed within two months from the date on which the information was recorded by the police officer in charge of the Police Station.

Thus, we consider it appropriate to call for status report with regard to the following: –

(1) whether police is completing the investigation and submitting the final report within a period of two months from the date of recording of information of the offence and if no, reasons for delay?

(2) whether sufficient number of women police officers are available to conduct investigation into the offences relating to rape and other sexual offences?

  1. Sub-Section (5A) of Section 164, Cr.P.C. provides for recording of statement of the victim by the Court. Other than recording of statements under Section 164, for the purpose of recording of statements during the trial, Section 119 of Evidence Act provides for assistance of an interpreter or a special educator in recording the statement of the witness unable to speak but capable to give evidence in any other manner. It further provides that such statement shall be video graphed.

Thus, we consider it appropriate to call for status report with regard to the following: –

(1) whether the police is taking the victim for recording of the statements as soon as the commission of the offence is brought to the notice of police?

(2) whether the Magistrate Courts or the trial courts have the availability of the interpreter or special educator in each Districts?

(3) whether the Magistrate Courts or the trial Courts have the facility of videography of the statements and depository of the same in the Courts?

  1. Section 26 clause (a)(iii) of Cr.P.C. provides for trial of such offences to be conducted by a Court presided over by a woman judge, as far as practicable. Further, Second proviso to sub-Section 327(2) of Cr.P.C. also mandates that in camera trial shall be conducted, as far as practicable, by a woman Judge or Magistrate. It must be noted that the insertion of the above proviso has a very important object and the rider of “as far as practicable” cannot be used to overcome the mandate in ordinary manner.
  2. The need for speedy trial of the cases relating to offence of rape has been emphasized again and again this Court. The proviso to sub-Section (1) of Section 309 mandates that the inquiry of trial shall, as far as possible, be completed within a period of two months from the date of filing of the charge-sheet.

Thus, we consider it appropriate to call for status report with regard to the following: –

(1) whether trial of cases relating to rape are being conducted by Courts presided over by a woman?

(2) whether sufficient number of lady judges are available to preside over the Courts dealing with sexual offences and rape?

(3) whether all courts holding trial of cases relating to offence of rape have requisite infrastructure and are conducting in camera trial?

(4) whether the trial relating to cases of rape is being completed within a period of two months from the date of filing of charge-sheet, if not, the reasons for the delay?

 (5) whether sufficient number of special Courts have been established to deal exclusively with the cases of rape and other sexual offences?

  1. Under Section 230 of Cr.P.C., a trial program is generally prepared on the application of the prosecution. This Court in the case of State of Kerala v. Rasheed, AIR 2019 SC 721 has held as followings:-

“The following practice guidelines should be followed by trial courts in the conduct of a criminal trial, as far as possible:

  1. a detailed case-calendar must be prepared at the commencement of the trial after framing of charges;
  2. the case-calendar must specify the dates on which the examination-in-chief and cross-examination (if required) of witnesses is to be conducted;

iii. the case-calendar must keep in view the proposed order of production of witnesses by parties, expected time required for examination of witnesses, availability of witnesses at the relevant time, and convenience of both the prosecution as well as the defence, as far as possible;

  1. testimony of witnesses deposing on the same subject matter must be proximately scheduled;
  2. the request for deferral under Section 231(2) of the Cr.P.C. must be preferably made before the preparation of the case calendar;
  3. the grant for request of deferral must be premised on sufficient reasons justifying the deferral of cross-examination of each witness, or set of witnesses;

vii. while granting a request for deferral of cross-examination of any witness, the trial courts must specify a proximate date for the cross-examination of that witness, after the examination in- chief of such witness(es) as has been prayed for;

viii. the case-calendar, prepared in accordance with the above guidelines, must be followed strictly, unless departure from the same becomes absolutely necessary;

  1. in cases where trial courts have granted a request for deferral, necessary steps must be taken to safeguard witnesses from being subjected to undue influence, harassment or intimidation.”

Thus, we consider it appropriate to call for status report with regard to the following: –

(1) whether case-calendar as envisaged in the Rasheed case is being prepared by the Trial Courts keeping in mind the time line of two months mandated by Section 309 of Cr.P.C.?

(2) whether the attendance of the witnesses is being ensured by the Prosecution to ensure the examination of witnesses on the fixed dates?

(3) whether any guidelines have been issued by Bar Councils or Associations urging the Advocates to assist the Court in completion of trial within the stipulated period?

(4) whether special exclusive permanent trial courts have been created in the state to deal with cases relating to rape and sexual assaults?

 (5) whether any High Court has constituted Special Bench for expeditious hearing of appeal in these cases?

  1. The protection of witness during the investigation and trial is essential in cases of this sensitive nature. Many a times the accused live in proximity of the victim. The possibility of tampering with evidence and pressurizing the witness affects fair trial.

Thus, we consider it appropriate to call for status report with regard to the following:-

(1) whether any policy of victim/witness protection in the cases relating to rape is framed and implemented?

(2) whether police protection is being provided to the victim during investigation and trial of the offence?

(3) whether there are special waiting room in the Court premises for victim/witnesses of cases relating to offence rape?

(4) whether the trial Courts have taken appropriate measures to ensure that victim woman is not confronted by the accused during the trial as mandated by Section 273 Cr.P.C.?

  1. Section 357A(2) Cr.P.C. provides for award of compensation to the victims. The District Legal Service Authority or the State Legal Service Authority are bound to decide as to the quantum of compensation to the victim on the recommendation of the Court. By the order of this Court in W.P. (C) 565/2012 titled Nipun Saxena v. Union of India, the National Legal Services Authority, New Delhi had prepared a Compensation Scheme for Women Victims/Survivors of Sexual Assault/other Crimes – 2018. This scheme has been circulated among all states for necessary actions. The Scheme comprehensively provides for the rehabilitation and compensation for the victims of Rape.
  2. As the victim goes through a mental trauma and requires immediate counselling, legal aid and medical, social and in some cases, economic rehabilitation.

Thus, we consider it appropriate to call for status report with regard to the following: –

(1) whether Courts are recommending the District Legal Service Authority or the State Legal Service Authority for compensation in appropriate cases?

(2) whether the amount of interim or final compensation is being provided to the victims in time bound manner?

(3) whether the above-mentioned Scheme of 2018 or suitably amended Scheme, has been implemented by the states for rehabilitation of victims of rape?

 (4) whether the SLSA or NLSA has formulated any scheme for social, medical and economic rehabilitation of the victim?

(5) whether any state has prepared a policy with regard to the counselling of the victim and medical, social and in some cases, economic rehabilitation of the victim?

(6) whether there are any counselling/rehabilitation centres in existence for the victims of rape?

  1. In the year 2013, a separate fund namely Nirbhaya Fund for projects of women safety to support initiatives by government and NGOs was created, and it is important to inform ourselves how far has the purpose of setting up the fund been achieved.

Thus, we consider it appropriate to call for status report with regard to the following: –

(1) Utilization of the Nirbhaya Fund by Central or State Government(s) for the purposes envisioned?

  1. Let the matter be registered as Suo Motu Writ Petition Criminal with the caption “Assessment of the Criminal Justice System in response to Sexual Offences”.
  2. In order to collate all the information and status and provide a holistic view of implementation of provisions of law and to suggest measures for making the criminal justice system more efficacious and responsive towards the offence of rape and other sexual offences, we request Shri Sidharth Luthra, Senior Advocate to assist the Court as Amicus Curiae in the matter.
  3. The learned Solicitor General is requested to extend all co-operation to the Amicus Curiae in this regard.
  4. The Secretary General, Supreme Court of India shall also extend co-operation in respect of calling for information and status reports from the Chief Secretary and the Director General of Police of all the States, the Registrar General of all the High Courts and other functionaries, as may be required.

45897_2019_1_49_19246_Judgement_18-Dec-2019

Justice Ranjan Gogoi delivers the third Ramnath Goenka Memorial Lecture — The Vision of Justice

PUBLISHED IN THE INDIAN EXPRESS

Full text of Justice Ranjan Gogoi’s speech at RNG Memorial Lecture:

I express my most heartfelt gratitude to The Express Group for extending this opportunity to me to deliver the lecture which has been organised in the memory of a man who was an institution in his own right: Ramnath Goenka ji.

While unlike some of you present here, I had not had the occasion to ever meet him, but, fortunately I have not been untouched by his proud legacy. Which gleams through that what he had founded as an answer to Gandhi ji’s call to start a swadeshi newspaper. Living in the realm of the Raj, it needed an iron-will and iron man and we found it in a young Ramnath ji. His legacy also gleams through the rich jurisprudence on the Freedom of the Press that he was instrumental in moulding, and which, by virtue of my Office, I work every day. It needed a committed and a cause-driven litigant – a rarity which it is nowadays – and we found it, yet again, in Ramnath ji. During the dark days of the Emergency, he stood as an unwavering gatekeeper of those fundamental liberties that we hold so dear today and that is his legacy too.

PART 1:

Today, after all these years, some remember him as the ‘Warrior of the Fourth Estate’ 1 , some remember him as a “dogged, unyielding adversary” 2 , some remember him as an “iconoclast”, some as a “magnificent rebel”. He was, at times unapologetic, at times uninhibited, at times even contradictory, but forever fierce, forever feisty, and forever fearless. His entire life trajectory from Darbhanga to Madras to Bombay; from the Constituent Assembly to the Newsroom to the Courtrooms, is a test case of its own kind that we, perhaps, need to use more often in our lives, in our institutions. Not too long back, I had read an interesting news article talking about the surprising surge – which is not so surprising, all things considered – in the sale of George Orwell’s 1984 in the United States. That piqued my interest in revisiting the classic. And, for some reason, I want to recollect a thought from it today. “Freedom is the freedom to say that two plus two make four. If that is granted, all else follows.”

Abhishek Manu Singhvi of the Congress party along with former finance minister P Chidambaram at the third Ramnath Goenka Memorial Lecture in New Delhi. (Express Photo by Abhinav Saha)

If I had to put it very simply, for me, this is what Ramnath ji stood for. The freedom to say that two plus two make four. And, that is how I remember him as. Someone who could call Spade a Spade. Someone who could speak truth to power. Even if it came at a cost. To be ready to break, but not bend could be called obstinacy by some, and determination by others. Is it a matter of perspective? I do not know. And, I cannot say for others but as far as I am concerned, I only feel that we need to ask ourselves some questions: Where is the Goenka in us; his ideals; his values? Is that extraordinary phenomena losing his relevance today, after all these years? Why I have chosen the topic for this discourse merits a context too. And, this is the context. These are some sore questions, but too significant to get lost in the everydayness. And, when it is so, what other better tribute can there be to a visionary who embodied in so many ways the spirit of our Constitution, than to spend a thought. To spend a thought over how far we have come to achieve the vision that he had seen as someone who helped free the country in one era, and helped it become a meaningful Democracy in another.

PART 2:

I will use a few minutes to put across my proposition as to what I intend to say when I talk about the “Vision of Justice”. I will borrow from the Chief Editor Shri. Raj Kamal Jha himself, because it offers a very fine perspective. Very powerfully and thoughtfully and rightly, he said of Ramnath ji in one his letters to me, that, “fierce independence” and “enduring sense of inquiry without fear or favour” were the two values that Ramnath ji believed formed the “bedrock of Justice”. It is absolutely incontestable that they do and, for convenience, let me call them the Bedrock Principles. But, if I were to look at it anatomically, while these do indeed form the bedrock of Justice, what is the Form/Body of the ideal called Justice which rests on this bedrock? The Bedrock Principles have been the talk of the town lately considering how the entire thinktank is so keenly focused on it. And I am not suggesting that it ought not to be. It ought to be done and it is being done. I cannot recall the last time, the Judicial wing of the State made so much news. On a lighter note, let us recall, Hamilton (the American Founding Father) who had suggested that the Judiciary was the least dangerous branch of the State’s three branches – and I will refer to him again during the course of my address – but, were he to be here today, I wonder if he would have felt the same way. More so, in the light of the IE Top 100 Most Powerful Indians which included several names from the judiciary. But, the fact of the matter is that if we have to take stock of how we have fared – and about seven decades later since we ventured into becoming a Constitutional Order, this appears to be an opportune time to do so – we might as well do it comprehensively. And, by comprehensively what I mean is that we must evaluate both the Bedrock Principles and the Form Principles because the Vision of Justice, the way I understand it, is a compound of both. Clearly, they are not unconnected. And over the course of next about half an hour, I will attempt to touch upon both. I will begin with the Form Principles, and bear with me, in order to drive home my point, I may have to get somewhat academic.

From (L-R): Hrishikesh Roy, Chief Justice, Kerala High Court, Deepak Gupta, Judge, Supreme Court, N V Ramanna, Judge, Supreme Court, Madan B Lokur, Judge, Supreme Court at the third Ramnath Goenka Memorial Lecture. (Express Photo by Abhinav Saha) 

You will agree, that in the backdrop of a bleeding mega partition, deeply entrenched inequities, perpetuating injustices, our Constitution ushered us into believing in a grand promise of transformation on a scale that was beyond reformatory. It was, in all its full glory, a revolution in all aspects of life – social, economic, political. In a way, it said, let bygones be and the new society that we would be, would be egalitarian. While preserving our pluralistic character, we would be democratic and united too. The State would be religion-neutral, the citizens equal and together. Coming to think of it, it was just as pretentious as it was unpretentious an idea. But be that as it may, public institutions (one of them being the Judiciary) were inherited, they were tweaked where need was felt, to give life to this prodigious architecture of Justice. And, here, I would like to clarify that by justice, I am not implying only the juridical connotation of the word which is the administration of justice by the courts of law – although it is just as imperative – but justice is something that is an overarching principle, an underlying fundamental, the spirit, an order so to say. Which is why I say “prodigious”.

PART 3:

Because, it was a confluence of very many philosophies – [1] the Aristotelian, for instance, which suggests that the very essence of the State is justice which according to the philosopher was a social virtue; good of others; equality and fairness. When we peruse the Preamble to the Constitution- our vision document – is it not that this ideology is enshrined in the words “Equality of status and opportunity”? [2] Or, the Utilitarian philosophy of John Stuart Mill whose view was that justice was the greatest good to the greatest numbers. In the Preamble, is this not enshrined in the principles of “Socialism”, and “Equality” yet again? [3] Or, the relatively more modern one: the Rawlsian perspective which is that justice as fairness is the most egalitarian and also the most plausible concept of liberalism. In the Preamble, is this not reflected in the words “Liberty of thought, expression, belief”. So, the Preamble, if you deconstruct it precept-wise, is the very embodiment of these ideas. Justice is not something that is a standalone precept but an amalgam of other ideals like “socialism”; “democracy”; “liberty”; “equality”; “fraternity”, to name a few. They are not isolated silos because their undying endeavour is to establish one discipline – of overall justice, of an inclusive society. And, this is exactly what I meant by the Form Principles of Justice as an ideal. As a composite unit called Justice, these had been intended to be achieved by the Legislature, the Executive and the Judiciary.

Justice is not something that is a standalone precept but an amalgam of other ideals like “socialism”; “democracy”; “liberty”; “equality”; “fraternity”, to name a few — Justice Gogoi in his address. (Express Photo by Tashi Tobgyal)

Now, it will make for an incredibly interesting and if I may add overwhelmingly contentious tale to tell as to how the Executive and the Legislature have performed on this front. But the scope of my discourse will be limited to the judiciary’s endeavour in this regard. A few months back, I had the occasion to deliver the Justice P.D. Desai Memorial Lecture, at Ahmedabad. And, there I had proposed that attaining Constitutional Idealism was not like chasing a rainbow and the Supreme Court, through its pronouncements, had been reflecting it. It would not be a display of the pessimism of the intellect today, if I were to say that while, indeed, attaining Constitutional Idealism (= Vision of Justice) is not like chasing a rainbow, but, it is so only in the courtrooms. Perhaps, because fields are where the rainbows are (“fields” being the operative word). The point being that the way nation is built and the way this grand Vision of Justice is attained in the confines of the courts through judicial pronouncements and the way they are built on the ground are two very disparate realities. Agreed, the aspirational aspect of the Constitution and the operational aspect of the Constitution will always be two different notions. The aspirational aspect is high idealism of a kind that is almost moralistic and preachy. The operational aspect has to do with the very strange realities of the ground, almost defeating. But then even if we may be slow to move to bridge the gap between the two, which itself is not an acceptable compromise either, but we must, at the least, not become retrograde.

Justice Ranjan Gogoi: The judgments beyond their bare letter, say that, societal morality is fickle and not that, but constitutional morality that ought to dictate terms. (Express Photo by Tashi Tobgyal)

Take for example the 2015’s ruling in Shreya Singhal v. Union of India 3 (2015). It is a celebrated judgment, where the Supreme Court held that the public’s right to know was directly affected by Section 66A. Interestingly, while doing so, the Court was certainly inspired by, amongst other rulings, Romesh Thappar v. State of Madras 4 (1950); Brij Bhushan v. State of Delhi 5 (1950); Bennett Coleman & Co. v. Union of India 6 (1973). If you would recall, these were perhaps some of the earliest pronouncements protecting an Independent Indian’s Speech and Expression and were delivered in the light of the rights of the Press, which verdicts themselves had endorsed that a democracy was a marketplace of ideas where the people had a right to know; that prior restraints were anathematic to a democracy and that the freedom of speech and of the press is the Ark of the Covenant of Democracy. Shreya Singhal took this legacy ahead as it improved upon the jurisprudence on the independence of the Press to attain and promote the Constitutional precept of plurality of thought, diversity of opinion and the ethos of democracy in the tech-age and in the context of online speech. The Vision of Justice was indeed attained in the courtroom. Not once, but multiple times. But has it translated into reality? Has the success of these sterling verdicts reached the ground? I will let the facts speak for themselves. On the ground, it is a descent into chaos. And it is worrisome on all counts when you sue the messenger or when you shoot the messenger, or when the messenger itself declines to deliver the message because of the fear psychosis. On the 19 th June, The Indian Express had published a very insightful article (selected from The Economist) titled as ‘How Democracy Dies”.

From (L-R): Acting Chief Justice of Delhi High Court Justice Gita Mittal, Former Law Minister Ashwani Kumar, CPI leader D Raja and jurist Soli Sorabjee at the third Ramnath Goenka Memorial Lecture. (Express Photo by Abhinav Saha)

It said, at one place, that, “…independent judges and noisy journalists are democracy’s first line of defence…Reports of the death of democracy are greatly exaggerated. But, the least bad system of government ever devised is in trouble. It needs defenders.” I agree but will only suggest a slight modification in today’s context – not only independent judges and noisy journalists, but even independent journalists and sometimes noisy judges. While Shreya Singhal was significant in its own right, NALSA v. Union of India 7 breathed new life into the Equality principle. The Court understood that our Founding Fathers’ vision about fundamental right against sex discrimination was to prevent differential treatment as a result of one’s not conforming to generalizations. The judgment made a momentous foray into the fountain-head of dynamism. And, I will get back to it but before I do that, I must touch upon a very fascinating judgment of 1986 vintage called Bijoe Emmanuel v. State of Kerala 8 . This was a case where three Jehovah’s Witnesses had refused to sing the National Anthem (as their tenets dictated so) when it was being sung in their school. They did stand up though. Nevertheless, they were expelled from the school. When the case found its way to the Supreme Court, while holding that the expulsion would be in violation of their Fundamental Right to ‘freedom of conscience’, the Court observed that “the real test of a true democracy is the ability of even an insignificant minority to find its identity under the country’s Constitution.”

Former Chief Justice of India Rajendra Mal Lodha (Express Photo by Abhinav Saha)

The court also felt the need to add a thought. And, I feel compelled to quote it. It is the penultimate line of the verdict and it says – “our tradition teaches tolerance; our philosophy preaches tolerance; our Constitution practices tolerance; let us not dilute it.” Recently. in Adi Saiva Sivachariyargal Nala Sangam v. Government of Tamil Nadu 9 , the Court held that even in the matters of religious beliefs, constitutional legitimacy cannot be foregone and following Justice B.K. Mukherjea in Shirur Mutt case (of 1954), went on to hold that it is not the State or the religious Indian but the Constitutional Court which decides on what constitutes essential practices of any particular religion.

Some of you could be wondering about how these judgments are even related. They are not. But, they are, at the same time. Dissimilarity is that the first one originates in a very intimate, private sphere of life and the other two originate in what everybody seems to want to have a say in – the matters of faith. But, it is the similarity that should be the take away. The judgments beyond their bare letter, say that, societal morality is fickle and not that, but constitutional morality that ought to dictate terms. As an Israeli judge Aharon Barak points out, it is not the transient spirits of time but the fundamental values that should be the guiding voice 10.

In a way, it said, let bygones be and the new society that we would be, would be egalitarian. While preserving our pluralistic character, we would be democratic and united too. (Express Photo by Tashi Tobgyal)

In his last address to the Constituent Assembly, Dr. Ambedkar had said that we must not only be a political democracy but a social democracy as the former cannot last unless lies at the base of it the former. And, social democracy, he defined, as a way of life which recognises liberty, equality, fraternity as one principle. I wouldn’t want to wade into knowing if we are a successful political democracy, but, I do, earnestly believe, that we are a social democracy, in all aspects. But again, largely jurisprudentially. And the disparity is there because the two Indias – both just as perceptible – are at conflict. There is an India that believes that it is the New Order and there is an India that lives below a ridiculously drawn Poverty Line on daily wages in night shelters with no access to education or healthcare, let alone access to the Courts of Law. The ambivalence is intriguing. And, this is exactly what I call as getting lost in translation. One India in the aforementioned perspective is the Vision and to know how far we have succeeded in attaining this Vision of Justice is really a matter of perception. But nevertheless, there is a graphic disparity right there and removing this disparity will be the mission for the Indian Judiciary in the times to come. And if I may add, for that to happen, it is going to require a “constitutional moment” of its own kind in the life of this institution, which I believe has been long overdue.

“I will only say that if it wishes to preserve its moral and institutional leverage, it must remain uncontaminated,” says Justice Gogoi. (Express Photo by Abhinav Saha)

The Constitutional history with reference to this institution as a whole (and, especially the Supreme Court) would show that its own role has constantly evolved in the light of the socio-political context. If 1970-1980 was the decade where it expounded the Basic Structure Doctrine, in 1980s, it constantly expanded the scope of Article 21 and by 1990s, it became somewhat of a “Good Governance Court” by innovatively interpreting Constitutional provisions to address the inadequacies consequent upon executive and legislative inactivity. In the first fifty years since our independence, the court has created a very sound jurisprudence which we continue to reap from. It is the inertia really that has kept us going till now. But the way things stand today, court processes are a trial even before the trial has begun. While I cannot say if it is a collective failure on our part but for a nation governed by the rule of law, is it not a matter of concern that to this extent at least, we are defying the idea of inclusiveness? Not a reform but a revolution is what it needs, to be able to meet the challenges on the ground and to keep this institution serviceable for a common man and relevant for the nation. For the effectiveness of the judgments to show, the justice dispensation system has to be made more result oriented i.e. to say, more focused on enforcement. I understand what Mr. Arun Shourie 11 suggests when he wonders if the judiciary is not being an “accessory to the resulting deterioration”, when it in its hopefulness and optimism, doesn’t go after its mandate till its implementation. I find it difficult to agree wholeheartedly. But I will certainly say that the judiciary must certainly be more pro-active, more on the front foot. This is what I would call as redefining its role as an institution in the matters of enforcement and efficacy of the spirit of its diktats, of course, subject to constitutional morality (= separation of powers) again. I will even go ahead to say that the institution, at all levels, needs to become more dynamic in the matters of interpretation of laws. And, this is what I mean to say by a constitutional moment of its own kind. However, it is going to be a tall order both at the micro level and the macro level because both come with their unique sets of challenges.

Executive Director of The Express Group Anant Goenka (left) presents a sketch to Justice Ranjan Gogoi at the third RNG Lecture in New Delhi on Thursday. (Express Photo by Neeraj Priyadarshi)

By micro level, what I mean is administration of justice on day-to-day basis. Here, the so-called “inefficiency” and “slow processes” have been historical challenges. I will put it very simply. The judiciary today is not a poor workman who blames his tools, but it is a workman with no tools. I am not going to saddle you with the figures that we keep consuming every day on pendency, arrears and judges’ strength but in the light of what a French author had once said, “Everything has been said already, but as no one listens, we must begin again.” 12 , I will only ask and request those at the helm to finally listen so that we must not have to begin again. In addition to that, I also feel that there is a pressing need to explore the endless limits of legal services mechanism. Legal awareness and legal empowerment of the marginalised in this vastly unequal society of ours, have to be a made an observable reality. Let me give you one instance which is glaring insofar as personal liberty is concerned. 67% of the prison population are undertrials, mostly belonging to the underprivileged classes and 47% of them are between the age of 18-30 years. Compare this with the U.K. where it is about 7% and the U.S. which is acknowledged to have a high rate of incarceration where the percentage is 22.7%. The period of about one year that a majority of the undertrials have been in custody would hardly redeem the situation. Will it be wrong to suggest that a fair share of our demographic dividend is being unjustifiably lodged in the jails and mostly for petty or less serious offences?

The judiciary, with whatever little it has had at its hand, has been a proud guardian of the great Constitutional vision. (Express Photo by Neeraj Priyadarshi)

At the macro level, the judiciary as an institution is being seen as a course corrector, a leveller, a democratiser of sorts. And, since it is too well known that this country is on the cusp of an evolution, naturally it will have implications for this institution just as much. I would like you to recall that I had mentioned about Hamilton in the beginning of the discourse. While contemplating the U.S. Constitution 13 , he had said that the judiciary is the weakest of three branches because it neither has force of the Executive nor the will of the Legislature, but only judgment. This, and which I agree with absolutely, he said, was the “simple view of the matter”. The complex view is this. And which he was wise enough to warn about over two centuries ago. He had said that while the civil liberties will have nothing to fear from the judiciary alone, they will have everything to fear from the union of the judiciary with either of the other two branches.

Punjab and Haryana High Court Judge Justice Surya Kant (Express Photo by Abhinav Saha)

I would like to believe, this is why, Ramnath ji had also said that “fierce independence” is indeed the bedrock of justice. But I would like to add that “independence” must always be responsible with due regard to established Constitutional values. This institution is the last bastion of hope and the one that the citizenry believes firmly, will give justice to them, come what may. And it has. The judiciary, with whatever little it has had at its hand, has been a proud guardian of the great Constitutional vision. It fills me with immense pride to see that as an institution, the judiciary has been endowed with great societal trust. This very fact gives it its credibility and this very credibility gives it its legitimacy. It is a very enviable spot for an institution. I will only say that if it wishes to preserve its moral and institutional leverage, it must remain uncontaminated. And, independent. And, fierce. And, at all times. A chain is only as strong as its weakest link. So is an institution. And if introspection is where we have to begin, we might as well begin there. Perhaps, we can hope and endeavour that in the future, it is not our finality, but really our infallibility that should define us. It is my imagination of an ideal world and I am aware of what Carl Jung had said of it. He had had said that, “Every form of addiction is bad, no matter whether the narcotic be alcohol, morphine or idealism.” I don’t know how true his view holds on other counts, but as far as idealism is concerned, I would say, it should be pursued like an axiom. Thank you very much.

Jai Hind!

How government plans to use DNA

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By Sowmiya Ashok , Amitabh Sinha | New Delhi, Pune Published in The Indian Express

After a series of attempts to legislate DNA technology, a Bill on the subject has been cleared by the Cabinet. Whose DNA does the Bill propose to use, and how? How will it address privacy concerns?

With DNA technology being relied upon worldwide in crime investigations, identification of unclaimed bodies, or determining parentage, India has been attem

pting for several years to pass legislation on use of DNA technology to “support and strengthen the justice delivery system”. Last week, the Union Cabinet approved the DNA Technology (Use and Application) Regulation Bill, 2018. This follows attempts to frame a Bill in 2007, 2015 and 2017, each under a different name.

Broad features

According to the final draft prepared in December 2017, the Bill seeks to “provide for the regulation of use and application of DNA technology for the purposes of establishing identity of certain categories of persons including the victims, offenders, suspects, undertrials, missing persons and unknown deceased persons and for matters connected therewith…” Its major features include:

DNA REGULATORY BOARD: The board, which will have regional offices as required, will certify labs authorised to carry out DNA testing, approve establishment of DNA databanks and supervise their functioning, and lay down procedures and guidelines for collection, storing, sharing and deletion of DNA information.

DNA DATABANK: A National DNA Databank and certain regional DNA Databanks will store DNA profiles received from DNA labs in a specified format. “As I see from earlier drafts of the Bill, the DNA Databank will have various categories of indices such as crime scene index, suspect index or undertrials index, offenders index, missing persons index.” said Madhusudhan Reddy, lab-in-charge of DNA Fingerprinting Services at the Centre for DNA Fingerprinting and Diagnostics in Hyderabad. This, he said, will help solve and prevent crimes and can also be used for civil matters. “According to the NCRB, there are almost 40,000 unidentified bodies within the country. And if in a nearby area an FIR has been registered reporting a missing person, the family member’s DNA can be compared with the unidentified person to see if it matches.”

Limited purpose

The Bill states that the DNA data, including DNA profiles, samples and records, contained in any DNA labs and Databank “shall be used only for the purpose of facilitating identification of the person and not for any other purpose”. It will only be made available to facilitate the identification of persons in criminal cases in accordance with the rules of admissibility of evidence, to facilitate prosecution or defence, and in investigations relating to civil matters.

Other than in suspects and offenders’ index, the identity of a person is not to be stored in other indices. Only case reference numbers are to be stored in such cases, the Bill states. If a person is not an offender, suspect or undertrial, his/her DNA information cannot be matched with the offenders’ or suspect index. DNA profiles of suspects or undertrials can be removed from the index as per court orders.

The Bill states that DNA information cannot be taken from an arrested person without consent. The exception is only for specified offences, though

the Bill does not elaborate on this. Samples can also be obtained from persons who are witness to a crime, or want to locate their missing relatives, or in similar instances in which they can volunteer, in writing, to offer their DNA samples for a specific purpose. But volunteer samples would not be stored in any index. In case, the Bill states, a suspect or criminal refuses to give consent for DNA collection, and his/her DNA information is considered vital for investigation of a crime, the DNA information can be collected from him/her only with the approval of a magistrate.

Safeguard against misuse

The Bill states that disclosure of DNA information to unauthorised persons, or for unauthorised purposes, shall lead to penalties: up to three years in jail and up to Rs 1 lakh as fine. Principal Scientific Adviser K VijayRaghavan, a former secretary of the DBT, said that the new version looks at the DNA sequence in a manner where all major genes are anonymous. “They look at those elements which identifies the person, but don’t identify any of your genes. Genetic background is protected, but the person is still identified,” he said. “This is just like how your fingerprints will identify the person but not tell you whether he has diabetes or not. So this law cannot use DNA identification in criminal cases, loss of lives, paternity, in a manner which reveals anything about the person’s health.”

Previous attempts

The draft Bill was first named DNA Profiling Bill in

2007 and then Human DNA Profiling Bill in 2015. In July 2017, the Law Commission’s report proposed a new amended draft called ‘DNA based Technology (Use and Regulation) Bill’, 2017, addressing some concerns on privacy and possible misuse. This current Bill is modelled largely on the Law Commission proposal, except for some nominal changes.

The Secretary of the Department of Biotechnology has been made the ex-officio chairman of the proposed DNA Regulatory Board. In previous versions, including the draft of the Law Commission, this job was open for other “eminent persons” as well, provided they had expertise and knowledge of biological sciences for at least 25 years. The head office of the board, earlier proposed in Hyderabad, is now to be in the National Capital Region.

Reddy said that India is 15 years behind the rest of the world in putting in place such a legislation. “We started off on par with western countries, and DNA profiling was used in the Rajiv Gandhi case and later DNA fingerprinting in the tandoor murder case. But slowly from 2007 onwards, we have been lagging behind, largely because people had some questions and issues regarding privacy. I do think this version is a best version of the Bill, incorporating suggestions that came in from stakeholders,” he said.

Reddy points to laws in countries like the US, to pr

otect genetic privacy. “Basically, there are enough safeguards here. But it would be strengthened if there was an overarching set of provisions and safeguards to protect our genetic information,” he said.

Despite the government’s pitch that such a DNA bank will be useful in solving crimes, activists and lawyers have argued that India does not have a data protection law and that information like ancestry or susceptibility to a disease, or other genetic traits, is liable to be misused. It has also been argued that DNA tests have not led to an improvement in conviction rates in countries where legislation is already being followed.

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Societies that are not vigilant risk losing their constitutionally guaranteed liberties.

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Chelameswar says civil society has a crucial role to play

Justice Jasti Chelameswar, the number two judge of the Supreme Court, warned on Friday that societies that are not vigilant risk losing their constitutionally guaranteed liberties.

“It is the role of civil society to constantly keep a vigil on all the activities of the state: be it the Executive, Legislative or Judicial activity. Judiciary is not apart from the state; it is part of the state,” said Justice Chelameswar.

He was speaking on ‘Role of the Civil Society in a Democracy’ at an event held in the city to mark the 90th anniversary of the Andhra Chamber of Commerce.

“Because ultimately, it is your liberties, my liberties which are in peril if any one of these bodies do not discharge their duties under the Constitution. Liberties belong to the bold: the timid and cowardly will not enjoy liberties. They are simply going to lose them in no time, unless you are constantly vigilant about it. Unless you constantly assert your constitutionally-guaranteed freedoms, you will not retain them for a long time,” he said. “A lot of societies lost them because people were not vigilant about it. Then, a lot of churning and a lot of bloodshed come back. That’s avoidable. If society is wise, if it is vigilant, if it constantly makes an assessment of what is going on in the government, all these three great branches of the Constitution, their liberties are safe,” he said.

Justice Chelameswar was the seniormost among the four judges of the SC who took the unprecedented step of holding a press conference on January 12 to talk about the selective allocation of cases by Chief Justice Dipak Misra. He is due to retire on June 22. During an interaction with members of the audience, the judge declined to answer various questions by saying, “20 more days” because those issues were being considered by the SC.

‘Keep debate alive’

“So long as the debate continues, that is good. If the debate stops, that is the danger signal. Keep the debate alive….If your children and grandchildren are to live with dignity in this country, you need a democratic form of government. You need an independent Judiciary. You need a good Parliamentary system…,” he said in his speech. The basis of Constitutional Law was in the need to check the concentration of power in the hands of a few. “The whole idea of establishment of the Supreme Court or the High Courts is not to glorify the Chelameswars or the XYZ judges of this country. The idea is to protect the people against Executive or Legislative abuse of power,” he said.

India is Lacking in the Amount of Sexual and Violent Crime Cases that Utilize DNA to Link the Accused to the Crime Scene

CA more aggressive DNA approach at crime scene, in the lab and in the court, will increase conviction rates and make India safer for women

New Delhi, Delhi, India

Crime in India is seen to be on an upsurge, especially rape and sexual assault cases where the conviction rate has fallen from 49% to as low as 29% in the last 3 years (between 2012 and 2015) in Delhi alone, and over 1,37,458 rape cases still stand pending for trial across India[1]. The lack of scientific methods in investigations is hampering justice delivery and the need for DNA casework expansion in India is now increasingly critical and urgent to build conviction in such cases.

“India is simply not collecting enough DNA at violent and sexual crime scenes,” said Tim Schellberg, President, Gordon Thomas Honeywell Governmental Affairs (GTH-GA), a legal and policy expert of forensic DNA. “DNA is the world’s greatest crime fighting tool. Consequently, DNA should be aggressively collected, tested and compared to the accused. DNA testing is happening in India, but not nearly enough,” added Schellberg.

GTH-GA estimates that the United Kingdom completes DNA testing on over 60,000 crime scenes annually. India is over 13 times larger in population that the United Kingdom, yet GTH-GA estimates that India’s crime labs collectively complete DNA testing on less than 7,500 cases annually. This is a very low number.

Furthermore, when DNA is collected, it often goes into large backlogs due to India’s lack of DNA testing infrastructure. The pendency of the backlogs for sample testing in the FSL at Rohini is 5661 and for the one at Chanakyapuri are 458[2. GTH estimates that most of the backlog cases mentioned is likely DNA.

As per the statistics available on the website of Directorate of Forensic Science, Himachal Pradesh[3], the pendency of DNA cases has gone up. In January 2017, the pendency of cases was 605 and in June 2017 was 674, whereas, the average collection of DNA cases is around 30 per month and average disposal of 15 cases a month. This shows almost 50 per cent increase in pendency at FSL per month.

As per the NCRB data, more than 34,651 rapes were registered in 2015. On the contrary, the annual report of the Centre for DNA Fingerprinting and Diagnostics (CDFD)[4] available for the latest year 2015-16 shows that they have received 99 DNA cases specifically for rape from different states.
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Senior Advocate, Delhi High Court, Vivek Sood agrees that not enough DNA is being utilized in rape cases. “In Delhi, the numbers of rape cases have tripled over the last five years, registering an increase of 277% from 572 in 2011 to 2,155 in 2016. In these cases, I rarely see DNA evidence presented by the prosecutors during trial. This is because DNA is not properly collected at crime scenes on a routine basis, and when it is collected, it is stuck in long backlogs in our underfunded crime laboratories. As a result, there is an over reliance on verbal statements provided by witness/witnesses in the court that can result in wrongly convicting the innocent. We must have more DNA testing to ensure a swift and just result for both the victims and the accused.”

Collection, transportation and storage of DNA forensic evidence are the key factors in rape investigations, which unless well-preserved and transported to FSL result in weak prosecutions and low conviction rate. India currently has approximately 30 FSLs with varied capacity to examine DNA Samples. To strengthen the criminal justice system, it is therefore critical to invest in the much required infrastructure and upgrading the FSLs for DNA – Collect, Test and Compare.

The availability of DNA when at trial to link the accused to the crime is seen throughout the world as the best way to increase charging and conviction of criminal offenders. One study from Denver, Colorado (United States) shows that when DNA is available the prosecutions, ‘charging rate’ was 8 times higher than cases that did not have DNA casework that matched a known suspect. While this data shows prosecution ‘charging’ and not conviction, the point is made showing how the system likes it when DNA is present. A charge rate that is 8 times higher when DNA is present is a big number and obviously will lead to a higher conviction!

EIndia can be a far safer place for women if DNA was collected and tested at all violent and sex crime scenes where the criminal offender leaves DNA. This is a must for all law enforcement authorities, and courts and prosecutors to ensure that the DNA be tested quickly and be used in courts to expedite the judicial process.

 GTH-GA works globally on DNA

Gordon Thomas Honeywell Governmental Affairs is globally recognised public affairs consultancy firm that has expertise with forensic DNA database policy, legislative, and law. For nearly twenty years, consultants at GTH-GA have consulted in over 50 countries and states on legislation and policies to establish or expand criminal offender DNA databases. GTH-GA collaborates closely with governmental officials, crime labs, police and the DNA industry. GTH-GA operates the DNAResource.com website that has been used as the world’s primary source for DNA database policy and legislative information since 2000.

Law-making Amid Moral Outrage

Editorial Article Published in the Hindu

Legislators acting in response to moral outrage seen on television and during street protests and being apparently influenced by the importunate gaze of victims of crime from the gallery, does not augur well for sound law-making. It may not be right to characterise the quick passage of the Juvenile Justice (Care and Protection of Children) Bill in the Rajya Sabha as a hasty move because it has already been passed in the Lok Sabha in May 2015. The draft too had been slightly modified before that, based on a February 2015 report of a standing committee of Parliament. Yet, it is difficult to overcome the impression that some members may have been gripped by a bout of moral panic after the release of the youngest convict in the Delhi gang rape of December 2012. The seeming sense of urgency was undoubtedly influenced by a section of the media demanding ‘justice’ after the convict was released from a Special Home on completing his three-year term there. An impression is sought to be created that the country’s collective conscience demanded that a tough law be enacted to ensure that juvenile convicts committing heinous crimes do not get away with light sentences. An edifying aspect of this legislative episode is that there are enough voices around that understand that restorative justice is best ensured for this underclass by addressing the fundamental problems that create juvenile offenders in society in the first place, by ensuring universal access to education and social care for all children.

law makingThe Bill, which contains progressive aspects such as streamlining adoption procedures and extending the law’s protection to orphans and abandoned children, still suffers from the problems highlighted by the parliamentary panel. The government, unfortunately, did not accept the view that children in a particular age group being subjected to the adult criminal justice system will violate their right to equality under Article 14 and the objective of protecting children in Article 15(3) of the Constitution. It, however, dropped a clause that provided for treating those who had committed crimes before reaching the age of 18 but were apprehended after they turned 21, agreeing that it was unconstitutional. It extended the period of preliminary assessment (the original draft called it ‘inquiry’) by the Juvenile Justice Board to determine whether a juvenile offender should be sent for rehabilitation or tried as an adult, from one month to three months. The board’s assessment will still be subject to judicial review and may set off litigation over whether one 16-year-old was let off lightly or another was wrongly sent to an adult court. Such decisions may also be influenced by the prevailing public mood. It would have been wiser to have let the law stand in conformity with the UN Convention on the Rights of the Child, which advocates equal treatment of all children under the age of 18. The difference between sober assessment and mercurial action cannot be more starkly emphasised.

Rage of the self-righteous Republic

In a speech to Harvard Law School in the 1890s, Justice Oliver Wendell Holmes, Jr. called the law “the government of the living by the dead” and said “to a very considerable extent, no doubt it is inevitable that the living should be so governed”. The December 16, 2012 rape and murder in Delhi of Nirbhaya, and the consequent legislative changes spawned by the incident, illustrate just this proposition.

First, the Criminal Law (Amendment) Act, 2013, redefined the offence of rape as well as the standards of proof required to sustain an allegation. Now the Rajya Sabha has just passed the Juvenile Justice (Care and Protection of Children) Amendment Bill, 2015, which allows for children between the ages of 16 and 18 to be tried in adult courts for heinous crimes.

JuvenilePrivate grief, public empathy

Driving the agenda of the dead are Asha Devi and Badri Singh Pandey, parents of Nirbhaya, who are now the face of India’s response to the tragedy. For the past three years, their public mourning for their brutalised, dead daughter has been a very intense affair. They are present at every court hearing of consequence, they have attended innumerable condolence meetings, commemorations and vigils. They have not allowed their daughter’s fighting spirit to die. We feel their sorrow, and share and understand their anger. To them, the release of the juvenile offender, in this case after only three years in a correctional facility, appears to be inordinately early.

But the righteous anger of this couple has become Schadenfreude and worse for a whole mass of citizenry. Anger is being exploited by TRP-driven purveyors of outrage porn, to strike at all possible newsworthy targets. The juvenile delinquent has been demonised to the point where any revelation of his current identity is likely to result in violence against him. Parliament is being excoriated in the mistaken belief that a legislative fix could have ensured continued incarceration of the juvenile. It is being suggested that legislative inaction over the passage of the Bill through the Rajya Sabha has been responsible for the juvenile walking free. Even when informed that the Constitution of India prohibits retroactive criminal punishments, the proponents of outrage for outrage’s sake point to the grave dangers of unpunished juvenile crime. They suggest that the new legislation, which enables trying juveniles as adults, is an effective deterrent which will ring-fence middle-class India from being attacked by juvenile criminals hell-bent on rape. The absence of a deterrent law, they suggest, is akin to inviting undeterred juvenile crime.

Worse than the disease

But has juvenile delinquency reached epidemic proportions requiring legislation? Or is it a single juvenile, involved in a grossly revolting case, whose facts are being used to create a fear which did not previously exist? While television anchors have harangued us about how juvenile crime has risen by 47 per cent, they have failed to inform us that actual juvenile crime is still less than 2 per cent of reported crime figures.

Second, most of it is non-violent crime and often the result of vagrancy. Most importantly, most children in trouble with the law come from extremely poor backgrounds and are often runaways from hunger and abuse at home. Does this most vulnerable section of our society require legislation to keep it from being a menace to the rest of us? To my mind, legislation may be a remedy worse than the disease.

Harsh legislation is a cheap fix for politicians to douse public anger at events. But harsh laws do not diminish the problem, nor do they protect future victims. TADA [Terrorist and Disruptive Activities (Prevention) Act] and POTA [Prevention of Terrorism Act] did not end up reducing terrorism, but they ended up empowering lazy policing. The Act to prevent atrocities on Scheduled Castes often ends up as a vendetta tool in government employment. Section 498A of the Indian Penal Code, which was introduced to combat dowry-related crimes, has been so abused that the Supreme Court had to step in to regulate its blatant misuse; the section has been responsible for many a salvageable marriage being wrecked. Criminalising cheque bouncing has resulted in our criminal courts being flooded with cases from financial institutional lenders and magistrates ending up as recovery agents. Yet, we as a society, keep clamouring for harsher laws, which politicians enact to escape being targets of outrage. We fail to heed Irish statesman, author and political theorist Edmund Burke’s dictum that “bad laws are the worst sort of tyranny”.

As a country, our lawyers, faced with delay in the civil courts, resort to the threats of the criminal justice system, where pretrial denial of individual liberty is often the norm. The maximum proportion of female offenders in any Indian jail is women arrested under the dowry laws. Their accusers are women as well but often put up to such accusations by male relatives and lawyers. Every crime which entails prison time ends up imprisoning a family as well. Criminal laws made to benefit a particular section end up being misused against them. It is in this background that we must consider the question of whether as a nation, we are better off treating our children in conflict with the law as adult offenders to be punished or as juvenile delinquents to be reformed.

The new Act has yielded to outraged opinion by making possible the trial of a young offender as an adult if he or she is accused of a heinous crime. Heinous crime is defined as crime that carries a sentence of imprisonment for seven years or more under any law. A variety of acts, including non-violent crimes such as forgery, or even crimes of incitement such as sedition, attract a prison term of seven years or more. Under the new law, a stone-pelting teenager in Kashmir or a teenage purveyor of counterfeit currency from Kanyakumari is as likely to be treated as an adult criminal.

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Pitfalls of extreme justice

We, as a nation, also have a warped attitude towards sex and sexuality, with notions of family pride and honour bound in. A lot of cases of young love and elopement do end up in police stations as charges of rape and kidnapping. An angry father of a runaway girl often has no means of restoring societal honour except by alleging that his daughter or ward was unwillingly taken away. Similarly where “love jihad”-type allegations are made, the filing of rape and kidnapping charges is usually the norm. When return is not an option for runaway teenagers, the other option is often voluntary death. When, previously, erring teenagers could be admonished, today we risk imprisoning them unless both sets of parents act maturely. We therefore need to very carefully evaluate how far we wish to traverse down the path of criminalising our youth.

From the policeman who makes the arrest, to the Juvenile Justice Board that takes the call on whether to allow prosecution as an adult, large amounts of discretion will necessarily operate. Those who can afford it can and will challenge any decision to prosecute in higher courts. The result is more likely to be greater uncertainty, and lesser justice, as criminal trials get stalled by appeals to superior courts.

“Extreme justice is often injustice,” wrote dramatist Jean Racine, and an India that disempowers the loneliest, the lost and the last will be a much harsher place. Whether safety lies in the path of harshness, or in effective implementation of existing laws, is a call for the republic to take. Justice Holmes, to return to his Harvard lecture, advised: “The past gives us our vocabulary and fixes the limits of our imagination; we cannot get away from it. There is, too, a peculiar logical pleasure in making manifest the continuity between what we are doing and what has been done before. But the present has a right to govern itself so far as it can; and it ought always to be remembered that historic continuity with the past is not a duty, it is only a necessity.”

Has Nirbhaya’s death necessitated harsh laws to deal with India’s young people or have we elders failed our succeeding generations of youngsters by exposing them to adult penalties?

(Sanjay Hegde is a senior advocate of the Supreme Court.)

Supreme Court Constitutes a Special Bench titled as “Social Justice Bench” for hearing matters related to Women and Children

Supreme Court of India
Supreme Court of India

The Constitution of India in its Preamble has assured the people a three dimensional justice including social justice. Under the domain of ‘social justice’ , several cases highlighting social issues are included. To mention summarily, about the release of smplus food grains lying in stocks for the use of people living in the drought affected areas; to frame a fresh scheme for public distribution of food grains; to take steps to prevent untimely death of the women and children for want of nutritious food; providing hygienic mid-day  meal besides issues relating to children; to provide night shelter to destitute and homeless; to provide medical facilities to all the citizen irrespective of their economic conditions; to provide hygienic drinking water; to provide safety and secured living conditions for the fair gender who are forced into prostitution , etc., these are som   of the areas where the constitutional mechanism has to play a proactive role in order to meet the goals of the Constitution.

 In Supreme Court several cases relating to the domain of ‘social justice’ are pending for several years. Hon’ble the Chief Justice of India is of the view that these cases shall be given a specialized approach for their early disposal so that the masses will realize the fruits of the rights provided to them by the constitutional text. In this perspective, His Lordship has ordered constitution of a Special Bench titled as “Social Justice Bench” to deal specially with the matters relating to society and its members , to secure social justice, one of the ideals of the Indian Constitution. His  Lordship  further directed that this Bench would function from 1th December ; 2014 and in order to ensure that these matters are monitored on regular basis, will continue to sit on every working Friday at 2.00 p.m. This Bench  will  be  comprising  of Hon’ble Mr. Justice Madan B. Lokur and Hon ‘ble Mr. Justice Uday U. Lalit. Not only pending cases but fresh matters will also be dealt with by this Special Bench.

When Annie Besant came to court

High Court Madras
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V RAMASUBRAMANIAM IN THE HINDU

The Madras High Court was one of the few courts to which even litigants added excitement.

While celebrating an important milestone in the history of a court, we normally tend to remember only the lawyers who stood and argued, and the Judges who sat and decided cases. But, the contribution of litigants was in no way less significant. Persons of eminence, whose names have gone into the history of India, have appeared as litigants in the Madras High Court and fought many a battle. The names of two of them merit mentioning.

Annie Besant was involved in two famous cases decided by the Madras High Court. One related to the guardianship and custody of two minors and another related to the freedom of the press.

Custody dispute

Narayaniah, a retired tehsildar and a member of the Theosophical Society, entrusted the custody of two of his sons, Krishnamurthi and Nityananda, to Annie Besant in March 1910. Annie Besant claimed that the elder son, Krishnamurthi, was likely to develop spiritual powers and become “a vehicle” for the manifestation of supernatural phenomena. After she took the boys to England, Narayaniah filed a suit in the District Court, Chengalpet, seeking custody of the minor sons.

The suit was withdrawn from the District Court and transferred to the High Court and tried by Justice Bakewell. Interestingly, both parties admitted that they were financed in the litigation by some third parties, which impelled the court to observe that some question other than the welfare of the children had influenced the litigation.

Narayaniah made allegations of immoral and improper conduct against Leadbeater, a prominent member of the Theosophical Society, with reference to the children. Annie Besant denied the allegations and claimed that the suit was politically motivated. She also made allegations against The Hindu, contending that a malignant campaign against her and the Society was carried on in the newspaper, at the instigation of Catherine Tingley and Nanjunda Rao. The Hindu filed an application to strike out certain portions of the written statement, which contained allegations against it.

The judgment

By a judgment on April 15, 1913, Justice Bakewell declared the boys wards of the court and decreed the suit directing Annie Besant to hand over custody to the father. Deviating from the normal rule that litigation costs would always follow the event, Justice Bakewell directed the plaintiff, the successful party, to bear the costs, on the ground that several Commissions had to be appointed and witnesses examined at several places. The allegations of immoral conduct made against Leadbeater were rejected as unbelievable.

Annie Besant appealed, and Narayaniah filed cross-objections on the question of costs. A Division Bench dismissed the appeal and allowed Narayaniah’s cross-objections. However, the Privy Council reversed the decision, after the boys expressed a desire to continue their education in England. After their return to India, the Theosophical Society anointed the elder boy as a World Teacher in the “Order of the Star in the East.” In 1929, he denounced the claim that he was a messiah and dissolved the Order. Eventually, he became an independent thinker and celebrated philosopher. He was J. Krishnamurthi.

While Sir C.P. Ramaswamy Aiyar appeared along with Subbaraya Iyer for Narayaniah, Annie Besant appeared in person and argued. Though C.P. Ramaswamy Aiyar appeared against Annie Besant, he maintained a very high degree of dignity and professional etiquette, which impelled her to laud him as a lawyer of unfailing fairness. At one stage of the battle, Narayanaiah wanted to initiate contempt proceedings against Annie Besant for her failure to comply with a court order. But C.P. Ramaswamy Aiyar prevailed upon his client not to do so. Touched by his gesture, Annie Besant sought, after the case was over, C.P. Ramaswamy Aiyar’s cooperation, in her educational and political work. A great friendship blossomed between the two, which led to C.P. RamaswamyAiyar becoming the Vice-President of the Home Rule League.

An interesting corollary of the custody dispute was the contempt of court proceedings initiated by Annie Besant against The Hindu for the publication of two items. The first was the entire plaint. Annie Besant charged that the items published tended to have a bearing on the questions at issue in the suit. After finding that the written statement of Annie Besant was also published in the newspaper, Justice Bakewell dismissed the contempt petition, holding that there was nothing to suggest any interference in the administration of justice. The Judge also recorded a finding that the contempt application was not made purely with a desire that the fountain of justice should remain undefiled, but as part of the warfare between the parties.

Second case

While in the custody dispute Annie Besant took exception to the role played by the press, she herself had to fight state oppression of the media in the next case.

In July 1914, Annie Besant purchased a printing press from where a newspaper, Madras Standard, was being published. She changed its name to New India and started publishing it from August 1914. As required under the Press and Registration of Books Act, 1867, Annie Besant filed a declaration in December 1914 before the Chief Presidency Magistrate. He accepted it without demanding any security. But, after more than a year, the Chief Presidency Magistrate suo motu passed an order, dated May 22, 1916, demanding that she deposit Rs.2,000 as security. The order was complied with.

A series of articles came to be published in New India in June 1916. Some of these criticised the bureaucracy, some related to the unlawful reservation of compartments in certain trains for Europeans and Eurasians. One was a reproduction of an article published in The Herald, London, under the headline, “The price of liberty.” Another was by Bipin Chandra Pal about the assassination of Superintendent of Police Basanth Kumar Chatterjee of Calcutta. One criticised the demand made on Bal Gangadhar Tilak for a security bond of Rs.40,000 on charges of sedition, when he was about to go abroad to prosecute his suit against Sir Valentine Chirole.

Taking exception to these articles, Governor-in-Council of Bombay issued an order on June 29, 1916, under the Defence of India Rules, 1915, prohibiting Annie Besant from entering, residing or remaining in the Province of Bombay. The order was published by Annie Besant in New India on July 10, 1916, under the headline, “Ave Caesar,” followed by another set of articles. The Governor-in-Council issued a declaration under Section 4 of the Press Act, forfeiting the amount of Rs.2,000 deposited by Annie Besant in respect of the New India Printing Works, Madras, and ordering the forfeiture of all copies of New India.

Annie Besant moved two motions, one against the order of the Chief Presidency Magistrate, dated May 22, 1916, demanding security, and another challenging the government order directing forfeiture of the security deposit and copies of the newspaper. In the former, C.P. Ramaswamy Aiyar appeared for Annie Besant. In the latter, she appeared in person and made a passionate plea for the freedom of the press before a Special Bench of the Madras High Court. But the Bench dismissed the petitions; the Privy Council upheld the decision.

Palkhivala’s turn

Another illustrious litigant to appear was Nani Palkhivala. Advocate A.C. Sampath Iyengar of Mylapore, filed a suit in the Original Side against Sir Jamshedji B. Kanga, N.A. Palkhivala, and N.M. Tripathi Ltd. His claim was that The Law and Practice of Income Tax authored by Sir Jamshedji B. Kanga and Palkhivala infringed his copyrights in the book authored by him under the title The Indian Income Tax Act.

The Attorney General for India appeared for the defendants along with H.M. Seervai. Palkhiwala examined himself as a witness and subjected himself to extensive cross-examination. At that time Palkhivala had not become a name to reckon with. Yet, Justice Panchapakesa Ayyar understood his potential and remarked about him in his judgment: “he… struck me as a competent and alert lawyer, who was thoroughly conversant with the Income Tax Act and Law, and was very well informed with every part of his book, and could give a cogent account of any part of it, regarding the scheme, arrangement, analysis, conclusion, criticism, etc. He struck me also as giving his evidence in a straight-forward fashion.”

Ultimately, the Judge dismissed the suit after recording a finding that sometimes authors, unlike businessmen, act on impulses. Exhibiting a high degree of grace at the threshold of a great victory, Palkhivala and Sir Jamshedji Kanga agreed not to press for costs. The decision in that case became one of the landmark decisions on the Copyright Act, and what Palkhivala, the second defendant in the suit, became in the next two decades, is history.

The Madras High Court is perhaps one of the very few courts, to which even the litigants added lustre in those days.

(Justice V. Ramasubramanian is a Judge of the Madras High Court.)

Lawyers for Change FELLOWSHIPS – 2012-14

Centre for Social Justice, Ahmedabad & ECONET, Pune
Lawyers for Change
FELLOWSHIPS – 2012-14

 Are you a lawyer who wants to make a difference?
Do you care about social issues and justice for all?
Do you feel that there is a need for change in the present legal system?
If so, read on…

 Structure of the Programme

 The programme is a two-year engagement with an annual evaluation as a milestone for continuation. During the two years, the selected candidate will be taken through an intensive capacity building process to use law for fighting exclusion, discrimination, enabling entitlements and to establish herself / himself as a leader in the field of law. There will be a total of 30 days of contact sessions in a year in which the selected candidate will be expected to remain present. These contact sessions will be conducted once every two months for 6-7 days pre-decided in the annual calendar. In between the contact sessions, Fellows will work with organizations working on rights based issues, explore possibilities of legal interventions and also carry out

 About Lawyers for Change (LfC)

 World history is replete with illustrations of great leaders who have been lawyers. They are the people who designed the structure of nations, led movements to eradicate ills of the society and inspired thousands of others to follow their footsteps. Lawyers for Change (LfC) is a fellowship programme for leadership development designed exclusively for young lawyers – for those who aspire to bring about change in the society. Over two years of the programme, LfC will systematically work with the lawyers and help them build the identity and skills required for Social Justice Lawyering. The academy has distinguished faculty members from amongst well known human rights educators, retired members of the judiciary, senior lawyers and practitioners in the field. Activities of the academy will include rigorous training sessions which will be conducted once in every two months. In between the two months, Fellows will explore opportunities for legal interventions while working with rights based organizations in different parts of the Country and be connected with the academy electronically.

 Applications for the Fellowship

 We are looking for:

 Students of law in their final year of law school expected to graduate before June 2012.

  1. Practicing lawyers who are associated with organizations working on rights based issues.
  2. Lawyers who want to start a practice on social justice issues.

PLEASE NOTE: The programme is open ONLY to candidates below 32 years of age. A good knowledge of written and spoken English and working knowledge of computers is a MUST for every candidate. The programme is open only to citizens of India.

How to apply?

An email may be sent to leaders.law@gmail.com on or before 29th February, 2012 with the CV of the applicant attached. The „Subject‟ field of the email must clearly mention “Application for Programme”. Candidates who had applied for the previous batch may also apply.

 Date and location of the interview will be notified to shortlisted candidates before 7th March, 2012.

 Fellowship

 Selected candidates will be awarded a fellowship of upto Rs. 16,000 per month. Candidates will also be entitled for a monthly allowance of Rs. 2500 for books, travel and internet connection. Travel to and from Ahmedabad for attending training sessions will be reimbursed according to policy.

Lawyers for Change Fellowships

Mobile: (+91) 99099 63150

Email: leaders.law@gmail.com 

Facebook: www.facebook.com/lawyersforchange

Lawyers for Change FELLOWSHIPS – 2012-14 Brochure 2012-14