The most precious of all freedoms

Justice A P Shah in THE HINDU

Indian courts have consistently upheld and championed the fundamental right to free speech and expression enshrined in the Constitution. This includes the right to put forward different and contrary views, right or wrong. A recent instance saw the Supreme Court of India striking down Uttar Pradesh‘s ban on the film Aarakshan. This article by A.P. Shah, retired Chief Justice of the Madras and Delhi High Courts, sets out key issues relating to freedom of expression and censorship by the state. The article, written before the ban on the film, Dam 999, is highly relevant in the current context.

The peculiar evil of silencing the expression of an opinion is that it is robbing the human race; posterity as well as the existing generation; those who dissent from the opinion, still more than those who hold it. If the opinion is right, they are deprived of the opportunity of exchanging error for truth: if wrong, they lose, what is almost as great a benefit, the clearer perception and livelier impression of truth, produced by its collision with error.

— John Stuart Mill, On Liberty, 1859

A few months ago, Aarakshan joined a long list of films whose screenings were sought to be curtailed by the state instrumentalities, because the social aspects depicted by them were seemingly understood as being bold or uncomfortable to the interests of certain sections of society. This once again raises the question whether India has truly come of age, or whether the freedom to express oneself is subservient to the subjective satisfaction of the state.

Just before the release of Aarakshan, which attempts to critically analyse the system of reservation in admissions in the Indian education system, three States, namely, Punjab, Andhra Pradesh and Uttar Pradesh, decided to suspend the screening of the film in their respective States. The Director of the film approached the Supreme Court against this decision of the States, contending that it amounted to pre-censorship when no such power was vested in them. During the pendency of the petition, Punjab and Andhra Pradesh withdrew the order of suspension in their States. However, Uttar Pradesh remained adamant and decided to defend its order.

Striking down the decision of the Uttar Pradesh Government, the Supreme Court held that even delicate issues like reservation require public discussion and debate in a vibrant democracy such as ours. Such a discussion on social issues spreads awareness, which is required for the effective working of the democracy. In fact, such an informed and positive decision only helps society to grow.

Free speech and expression under the Constitution

The right to freedom of speech and expression is enshrined as a fundamental right under Article 19(1)(a) of the Constitution. Freedom of expression means the right to express one’s opinion by words of mouth, writing, printing, picture or in any other manner. Such is the importance of this right in a democracy that without this right, the attempt to achieve a democratic and principles would be a hollow formality.

Although this right has wide amplitude, our Constitution mandates that when seeking to uphold the larger interest of society, the rights of an individual must give way to such collective rights. It is for this purpose that the right to freedom of speech and expression under Article 19(1)(a) is qualified by “reasonable restrictions” under Article 19(2) of the Constitution. However, to preserve the essence of democracy as also to prevent the state from exercising its will arbitrarily, it is required that such restrictions must only be imposed with a great amount of care and caution.

The Supreme Court, in the case of Life Insurance Corporation of India v. Prof. Manubhai D. Shah (1992) 3 SCC 637, stated that the restriction had to be interpreted strictly and narrowly. Such restrictions are bound to be viewed as anathema, inasmuch as they are in the nature of curbs or limitations on the exercise of the right and are, therefore, bound to be viewed with suspicion, thereby throwing a heavy burden on the authorities who seek to impose them.

In contrast to India, the American system places a much greater value on this right as the First Amendment to the U.S. Constitution does not permit any prior restraint, and the guarantee of free speech is absolute and unqualified.

Role of the censor

It was stated in K.A. Abbas v. Union of India and Ors., AIR 1971 SC 48that although it must be remembered that the cinematograph is a powerful medium, the mere portrayal of a social vice in a movie cannot attract the censor’s scissors: how the theme is handled by the producer should be the criterion. While analysing the role of the censor, the Supreme Court held: “The task of censor is extremely delicate and its duties cannot be the subject of an exhaustive set of commands established by prior ratiocination…..Our standards must be so framed that we are not reduced to a level where the protection of the least capable and most depraved amongst us determines what the morally healthy cannot view or read. The standards that we set for our censors must make a substantial allowance in favour of freedom this leaving a vast area for creative art to interpret life and society with some of its foibles along with what is good.”

Lawrence Liang stated in his article headlined ‘Sense and Censorbility’: “The practical mission of censorship is closely tied to the idea of creating an ‘ideal citizen-viewer. The task of censorship is to teach the viewer to become a citizen through particular spectatorical practices, and the imagined gaze of the citizen-viewer determines the specific content of censorship laws.”

Censorship on the decline

In general, prior restraint regarding film screenings has been on the decline over the decades in the democratic world. Since the 1960s in the United States, the courts have prescribed rigid criteria for prior restraint in cinema. Gradually, film censorship became impractical and no prior administrative restraint of films exists today in U.S. However, supervision of films still exists in the shape of film classifications introduced by the Motion Picture Association of America. Similarly in England, there is no general legislation conferring powers to censor movies, but the common practice is that censorship is based on the classification of movies according to their suitability to different audiences.

However, in contrast, certain countries such as India and several other Asian countries still retain censorship powers on films. The same can at best be understood as something in the nature of enforced morality being subjected upon the citizens by their state.

Censorship in Israel

It is observed that censorship has been on the decline even in a country like Israel which is considered to be largely conservative. The Israel Supreme Court, through landmark decisions such as Israel Film Studios v. Gerry (1962) Isr SC 15 2407 and Bakri v. Film Censorship Board (2003) Isr SC 58 (1) 249, has been instrumental in negating the overreach of the censors even in cases where it was submitted that there would be “an outburst of negative feelings against the state,” and “severe offence to the feelings of a section of the society”. In Laor v. Film and Plays Censorship Board (1987) Isr SC 41 (1) 421, the Censor Board refused to permit the staging of the play Ephraim Returns to the Army, on the ground that it presented a distorted and false picture of the military administration and the occupied territories under Israeli military rule. The court overruled this objection and observed: “The parallel between the German soldier arresting a child and the Israeli soldier arresting an Arab youngster breaks my heart. Nonetheless we live in a democratic state, in which heartbreak is the very heart of democracy.”

The case of Ore Oru Gramathile

The case of S. Rangarajan v. P. Jagjivan Ram and Ors. (1989) 2 SCC 574, concerned a film Ore Oru Gramathile, which much like Aarakshan, was critical of the policy of reservation of the government. Allowing the screening of the movie, the Supreme Court held that in a democracy, it is not necessary that everyone should sing the same song. Freedom of expression is the rule and it is generally taken for granted. Everyone has a fundamental right to form his own opinion on any issue of general concern. He can form and inform by any legitimate means. Movie is the legitimate and the most important medium in which issues of general concern can be treated.

The court also held that on the issue of balancing the two interests, the commitment of freedom of expression demands that it cannot be suppressed unless the situations created by allowing the freedom are pressing and the community interest is endangered. The anticipated danger should not be remote, conjectural or far fetched. It should have a proximate and direct nexus with the expression. The expression of thought should be intrinsically dangerous to the public interest.

Censor board has failed

Despite the power of regulating the content of films being vested in the Censor, the Central Board of Film Certification (CBFC) has often failed in the task entrusted to it by either stifling creativity or hijacking morality and trying to substitute it with the morality of certain vested interests. It is at times like these that the courts have to step in as the saviour of freedom, safeguarding different forms of expression against the censorial instincts of the state.

The Anand Patwardhan case

In the case of Anand Patwardhan v. Union of India, AIR 1997 Bom 25, Doordarshan refused to telecast the petitioner’s film, In Memory of Friends, which was about the violence in Punjab. The Bombay High Court, while dealing with the objection to screening of a movie, held: “The film maker may project his own message which the other may not approve of. But he has a right to ‘think out’ and put the counter appeals to reason. The State cannot prevent open discussion and open expression, however, hateful to the policies.”

The court further held that the petitioner’s film must be judged in its entirety. The film has a theme and it has a message to convey.

The same film maker, in Anand Patwardhan v. Union of India 1997 (3) Bom CR 438, approached the Bombay High Court seeking a direction to Doordarshan to telecast his documentary Raam-Ke-Naam. Objection was taken to certain scenes in the film where akar sevak justified the assassination of Mahatma Gandhi by Nathuram Godse. Rejecting the point of view that the film provoked commission of offence, it was held that “viewed from the healthy and common sense of point of view, it is more likely that it will prevent incitement to such offences in future by extremists and fundamentalists.”

Anand Patwardhan also challenged an order of the Film Certification Appellate Tribunal (FCAT), in Anand Patwardhan v. CBFC 2003 (5) Bom CR 58, which had directed changes to his documentary War and Peace (Jang aur Aman)that showed a Dalit leader questioning in his speech why the bomb had exploded on Buddha Jayanti day and not on Lord Rama’s birthday. The Bombay High Court held that it is only in a democratic form of government that the citizens have a right to express themselves fully and fearlessly as to what their point of view is towards the various events that are taking place around them.

Censorship against depiction of the aftermath of Godhra riots

The case of F.A. Picture International v. CBFC AIR 2005 Bom 145 was regarding the film Chand Bujh Gaya, which depicted the ordeal of a young couple — a Hindu boy and a Muslim girl — whose lives were torn apart in the State of Gujarat. The CBFC held that “the Gujarat violence is a live issue and a scar on national sensitivity. Exhibition of the film will certainly aggravate the situation.” The Bombay High Court held that no democracy can countenance a lid of suppression on events in society and stability in society can only be promoted by introspection into social reality, however grim it may be.

In Ramesh Pimple v. CBFC 2004 (5) Bom CR 214, the documentary film Aakrosh focused on the communal riots in Gujarat. The CBFC sought to curtail the screening of the movie on the ground that such exhibition would incite suppressed communal feelings. However, overruling this objection, the court gave the opinion that it is when the hour of conflict is over that it may be necessary to understand and analyse the reason for strife. We should not forget that the present state of things is the consequence of the past; and it is natural to inquire as to the sources of the good we enjoy or for the evils we suffer.

The Da Vinci Code controversy

The case Sony Pictures Releasing of India Ltd. v. State of Tamil Nadu, (2006) 3 M.L.J. 289, dealt with objection to the screening of Da Vinci Code, as the movie was considered to be offensive to the beliefs of Christians. Allowing the screening of the film, the Madras High Court held that the issue is whether there can be a work of art or literature or a film which propounds such interpretations, and whether the public have the right to decide whether to accept or reject such alternative interpretation. The issue is whether the state is bound to protect the person whose fundamental right is sought to be violated by people who threaten to breach peace, or whether the state will mutely watch such threats.

“When men differ in opinion, both sides ought equally to have the advantage of being heard by the public,” wrote Benjamin Franklin. If one is allowed to say that a certain policy of the government is good, another is with equal freedom entitled to say that it is bad. If one is allowed to support a governmental scheme, the other could as well say that he would not support it. The different views are allowed to be expressed by proponents and opponents not because they are correct or valid, but because there is freedom in this country to express differing views on any issue. The ultimate good in a society is better reached by free trade in ideas — the best test of truth is the power of the thought to get itself accepted in the competition of the market. Courts must be ever vigilant in guarding perhaps the most precious of all the freedoms guaranteed by our Constitution.

(Justice A.P. Shah is a retired Chief Justice of the Madras and Delhi High Courts. He wrote this article in the context of the ban on Aarakshan.)

SOURCE : http://www.thehindu.com/opinion/op-ed/article2656995.ece

 

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Hospital deaths & F1 fuel tale of ‘Two Indias’

School in Andhra Pradesh

Image by ILRI via Flickr

DHANANJAY MAHAPATRA IN THE TIMES OF INDIA

Recent events confirm the western world’s view that India is a country of contradictions. Foreigners who hold this view and have come to witness India record its name in the international Formula One race calendar must have felt vindicated.

How else can one explain the country breaking barriers in the field of science and technology, medical research and yet be counting the abnormally high deaths reported from hospitals in West Bengal and Uttar Pradesh and the government’s inability to reduce the high incidence of suicide among farmers in Maharashtra, Karnataka and Andhra Pradesh. The purpose of research in the field of medical science is to give the right to life the deserved meaning by finding ways and means to fight diseases. If a government is duty-bound to encourage such research, it is also constitutionally obliged to provide proper health infrastructure, including adequate number of doctors, so that people do not fall victim to any ailment.

If India has marched into the 21st century with a string of successes in scientific developments, how does one explain the death of 17 newborns in the last few days in Kolkata’s Burdwan Medical College Hospital? Who will compensate the parents for their loss? Surprisingly, the Mamata Banerjee government has already given a clean chit to the hospital by terming it as natural deaths. In eastern UP, nearly 500 people, mostly children, have died of encephalitis in the last four months. In BRD Medical College Hospital, three patients fought for space on each bed. Unable to take the load, the X-ray machine, ventilators and other equipment malfunctioned. Can patients and relatives of those who succumbed to the disease claim compensation from the government for poor health infrastructure?

The Supreme Court has consistently held that it is obligatory on the part of the government to provide adequate medical services to citizens. It had categorically held in State of Haryana vs Smt Santra [2000 (5) SCC 182] that the government’s health service officials were not spared from liability of paying damages to patients and their relatives for medical negligence. The healthcare system in its true sense has not reached the rural hinterland. Despite the much publicised National Rural Health Mission (NRHM), there are only 23,000 primary health centres in rural areas, each with six beds catering to a population of 20,000-30,000. Is this infrastructure enough to provide free basic healthcare? Can a villager, who is not poor if he spends Rs 32 on his food daily, afford to go to a private hospital which has expertise in fleecing patients? Can a villager ever dare to complain against the absence of doctors, support staff or unavailability of medicines in these PHCs? The SC in Spring Meadows Hospital vs Harjol Ahluwalia [JT 1998 (2) SC 620] said, “The relationship between doctor and patient is not always equally balanced. The attitude of a patient is poised between trust in the learning of another and the general distress of one who is in a state of uncertainty and such ambivalence naturally leads to a sense of inferiority and it is therefore the function of medical ethics to ensure that superiority of the doctor is not abused in any manner.”

Caught in the quagmire of inadequate health infrastructure and costly treatment in private hospitals, it is little wonder that quacks have a field day in rural India. There is a mushrooming of private medical colleges but none of the doctors who pass out would like to practise in rural areas, for villagers can never pay the fees he would demand to meet the expenses he incurred in getting an MBBS degree. We must have Formula One races in India. But is it not equally or more important for the government or the private sector to spend an equal amount to have high-class health infrastructure to cater to the rural poor?

http://timesofindia.indiatimes.com/india/Hospital-deaths-F1-fuel-tale-of-Two-Indias/articleshow/10548701.cms

Justice Katju: A colourful judge with a social conscience

JUSTICE MARKANDEY KATJU JUDGE SUPREME COURT

JUSTICE MARKANDEY KATJU JUDGE SUPREME COURT

DHANANJAY MAHAPATRA IN THE TIMES OF INDIA

Two decades ago, the Supreme Court set exacting standards for judges. In All India Judges Association case, the SC had said in 1992, “The conduct of every judicial officer should be above reproach. He should be conscientious, studious, thorough, courteous, patient, punctual, just, impartial, fearless of public clamour, regardless of public praise, and indifferent to private, political or partisan influences.”

It added, “He should administer justice according to law, and deal with his appointment as public trust, he should not allow other affairs or his private interests to interfere with the prompt and proper performance of his judicial duties, nor should he administer the office for purpose of advancing his personal ambitions or increasing his popularity.”

It is difficult to test Supreme Court judges against the 1992 norms. Most maintain a discernable degree of discipline in demeanour, dealings and decisions while deciding cases.

But Justice Markandey Katju was different. During his five-and-a-half year stint as an SC judge, he was an enigma — lovable yet distasteful, respectful yet disdainful, courteous in one moment and rough in the next. In his court room, polite conversations could suddenly turn into a vicious diatribe.

How does one describe a personality like Justice Katju? Could his judgments and observations in the court give a clue? It is said judges speak through their judgments. But did he conform to this? Difficult to say.

Coming from the renowned Katju family of Allahabad, he was a first divisioner throughout his academic career. Probably that – getting first division in every examination he appeared in — was the only thing that was constant for him. Everything else was fluid and dynamic.

Justice Katju was a staunch advocate of judicial restraint. He was against public interest litigations which invited judiciary to foray into the domains of executive and legislature. But, he did not flinch in converting innocuous petitions into PILs and kept giving directions to the chief secretaries.

To the credit of the man, he seldom hid his feelings and always wanted to do something for society that would leave a lasting impression. If he did a thorough job before rejecting a mercy killing plea advanced on behalf of Aruna Shanbaug, who had been leading a vegetative life in a Mumbai hospital for last 38 years after a violent sexual assault, then his efforts towards rehabilitation of sex workers will be remembered fondly for a long time in the red light districts across India.

When many feared to dwell openly about incidents of corruption in higher judiciary, Justice Katju jolted the judicial community by boldly recording in a judgment “something is rotten in Allahabad High Court” and referred to sons and kin of sitting judges becoming multi-millionaires in a short span of time.

He gave the impression of being a stickler for rules and laws, but went against a constitution bench judgment to advocate revival of anticipatory bail provision in Uttar Pradesh.

Justice Katju often ridiculed counsel for not reading the petition and the questions of law involved in it. But he himself was found wanting when he ruled that “mere membership of a banned organisation” was no offence though the Unlawful Activities Prevention Act (UAPA) clearly provided that it was a punishable offence.

English may be the language of the court but it did not prevent Justice Katju from frequently lapsing into Hindi. On social issues, his judgments began with an Urdu couplet.

No advocate dared challenge his knowledge either in law or in Urdu. Justice Katju loved engaging lawyers in light banter, but threatened to dismiss the petition if the counsel proved equal to the task in a debate that spilled off the judicial ring.

There was seldom a dull day in his court room. His retirement brought an end to a colourful tenure of an enigmatic judge. When a senior advocate’s comment was sought on Justice Katju’s retirement, he said, “Thank God, India does not follow the US Supreme Court system.”

In US Supreme Court, a person is appointed judge for life. In India, Supreme Court judges retire on attaining the age of 65 years.

http://timesofindia.indiatimes.com/india/Justice-Katju-A-colourful-judge-with-a-social-conscience/articleshow/10120508.cms

‘Are public servants cut above public?’

ABRAHAM THOMAS IN THE PIONEER

Sixty years after India became a Republic, the Supreme Court posed a question on Friday on whether public servants should be entitled to red beacons, a stream of security personnel and a fleet of cars as a matter of right.Wondering what the term “public servant” actually meant, a Bench of Justices GS Singhvi and SJ Mukhopadhyay gave liberty to convert a matter challenging grant of Z-plus security to a Congress MLA from Uttar Pradesh into a PIL to examine whether there should be norms or guidelines governing grant of security to VIPs and citizens in general, to prevent it being misused.

The case before the court was an appeal filed by one Abhay Singh through advocate CD Singh challenging grant of high security to one Pramod Tewari, MLA from Pratapgarh. The security was provided to him in 1985 for inviting wrath of the Sikh militants over an objectionable statement made by him. The Centre placed him in its prime security zone without reviewing the threat perception for decades together. Close to 50 security personnel were posted with him along with a fleet of cars, each attached with beacon light, causing inconvenience and terror among local residents.

Senior advocate Harish Salve, who questioned the entitlement of Tewari to secure Z-plus security, forced the Court to think on the larger issue involved. Since India became a Republic in January 1950, “any symbol of authority or superiority conferred by the Government or allowed by the government would fall foul of such a principle of egalitarianism.” Moreover, Article 18 abolished all titles and granting security as a matter of entitlement to public servants vitiated the very concept of the term defined under Article 309, Salve added. Conscious of the abuse of the security apparatus, the bench said, “This is a very serious issue. We will convert it into a PIL.”

What caught the imagination of the court was Salve’s insistence to remove such symbols that made public servants a crest above common man. Giving a historical context to the issue under debate, Salve maintained that public servants during British rule were foreign citizens who owed allegiance to the Crown and thus were awarded these symbols.

But it ceased after India gave itself a Constitution. Unfortunately, he remarked, “It is now a common practice amongst those who hold public office or are connected with political parties and organisations to seek security.” The Bench agreed, “public servants are actually servants of the public,” giving permission to Salve to file a fresh petition stressing this point.

The matter would be heard on October 14.

http://dailypioneer.com/nation/8611-are-public-servants-cut-above-public.html

Rape & Remedy

Rape - A henious Crime

Rape - A henious Crime

VANDANA SHUKLA IN THE TRIBUNE CHANDIGARH

The rhetoric on remedies of rape moves in circles – from capital punishment for rape to financial compensation to the victims to out of court ‘settlements’ to getting the victim married with the culprit. The woman’s need for dignity of course takes the back seat.

Despite an uninterrupted discourse on the subject over the past several decades, governments and society are yet to evolve a cast-iron system to deal with the crime and the criminals.

From the year (1971) the National Crime Record Bureau (NCRB) began collecting data on rape cases, it has shown an eight-fold increase. In 2008 over 21 thousand complaints were recorded in the country with various agencies conceding that over 80 per cent of the cases never get reported. Incest has shown a 30 per cent increase— these are disturbing social trends, which need to be researched and addressed. This stands in marked contrast to the other serious and violent crimes like murder, robbery, dacoity, kidnapping and rioting.

The NCRB has also concluded that only one in 69 rape cases get reported and only 20 per cent of the reported cases result in convictions.

Cash compensation ?

Compensation for rape is not a new idea. Courts have ordered for compensation to be paid under provisions contained in the statutes. Several state governments too have found it convenient to pay sums depending upon the extent of the public outrage and media exposure. But this is the first time the Ministry of Women and Child Welfare has launched a country-wide scheme and has offered to reimburse the state governments the cost they incur in its implementation.

But compensation — call it restorative justice or whatever —is tricky.

It is instructive to recall the experience with Prevention of Atrocities Act 1989 ( for SC and ST). Tribal and dalit victims of rape, were required to produce a certificate of their tribal/dalit status for receiving a compensation of Rs 25,000.

Getting the certificate in itself became a profit making proposition for brokers. Poverty also induced many to file false cases, thus defeating the well-meaning provision, points out Pratiksha Baxi from JNU.

The law also appears to assume unfortunately that standards of dignity are different for a woman from a well- off family and for a dalit woman. So, a dalit woman’s compensation money for rape can be shared by the rapist under the Act.

The compensation is paid if the victim belongs to either a Scheduled Caste or a Scheduled Tribe and the rapist does not. The law does not specify what happens if the woman is from a Scheduled Tribe and the man is from a Scheduled Caste or vice versa. Even before the Act was passed in 1989, since 1978 in UP women from SC and ST were paid compensation of Rs 5000 for rape.

The website of the Department of Social Justice and Empowerment, Govt of Gujarat, lays down that for outraging the modesty of a woman under section 3(1) (11) the Government pays a compensation of Rs 50,000, but in case the accused marries the rape victim, the ‘assistance’ ( here it is not termed as compensation) of Rs 50,000 is disbursed in the joint names of the couple.

It does not require great imagination to understand how these laws end up as bait for attracting more abuse for women. The website does not offer any data on how many women actually received the compensation or assistance!

Other obstacles

Compensation, obviously, can be paid only after the charge is established in court, which is a tall order in itself. Strangely, the scheme is sought to be justified by the need to help the victim financially so that she can fight it out in court. How this contradiction gets resolved , remains to be seen.

A study conducted by MARG in Uttar Pradesh throws up more questions.

Of the 33 registered victims or their family members the researchers spoke to, they found 13 victims were minors, 2 were six years old, one was between four and five years of age. One was 12 years old, others less than 14 years of age.

But in only four cases did the medical report confirm rape. Of the 13 minor victims, only one minor’s rape was confirmed. Two girls had the noting ‘no opinion’ and of the rest there was no medical record with the police. Yet, the compensation was ‘liberally’ sanctioned.

Although the police had no ‘medical examination report’ in their record, compensation was still sanctioned in as many as 28 cases, including nine in which there was no finding of rape. In one case the rapist and victim belonged to the same caste, hence the case was withdrawn!

The money, in case of minor victims, was received by the parents. Only two women spent Rs 2000 out of the received money to hire a lawyer.

Of the 13 minors, only four could attend school while most victims relocated to escape the stigma attached to rape. Their humiliation was compounded by the CM of U P, Mayawati , who had ordered the money to be delivered by the Director General of Police in person. He was also asked to take a helicopter and fly to various places for the purpose.

On the one hand rape cases are held in camera, on the other hand this display of ‘help’ discourages victims to report rape. The compensation, as and when paid, is often grabbed by the rest of the family, and makes the police indifferent and even more reluctant to pursue the cases. The attitude is, since the money has already been paid, why fuss over prosecution ?

Little research

In most countries, policies and laws are framed based on research based findings. But there are very few studies on the subject funded by the Government.

A few studies, mostly done by individuals who feel strongly about the issue, are however eye openers. Social activist Flavia Agnes’ study was based on observations drawn from her own legal practice and judgements involving rape cases; while Pratiksha Baxi’s ( Assistant Professor, Centre for Law and Governance, JNU, Delhi) study was based on what goes on inside the court rooms, where a 12- year- old is also asked sexually explicit questions a lawyer may hesitate putting to a 30- year-old.

Laws inadequate

Even after the much talked about Mathura case, which led to the amendment of Evidence Act in 1983, which allowed the woman’s word to be trusted for her non-consent, there has been no monitoring of judgements.

From 1860 to 2002, the colonial law based on the moral history of the woman was in application while looking at a rape victim, which meant that a woman’s sexual history would have a say on the writing of the verdict. Despite deletion of this clause, not much has changed in courtrooms.

A Google search for kanoon.com and rape cases will throw up several judgements, which are deeply patriarchal and explain why conviction rates are so abysmally low.

Doctors are surprised if the victim cooperates with them on examination (a victim is supposed to go stone-silent, weep and should have injury marks), policemen’s wives cannot complain of being raped by husbands ( because it is a husband’s right) and while the defence tries to prove that the victim is a consenting adult because anyone over 16 is thought to have given consent, judges worry about marital prospects of victims ( many rapists thus get lighter sentences when
they agree to marry their victims). Incest of course hardly ever gets reported because of the family’s insistence on silence.

Marry the rapist

Sakshi, an NGO, had released a study called ‘Gender and Judges’, in which it analysed the views of 119 judges from all over India, along with experiences of female lawyers, complainants and observations on court room trials.

Most judges found it impossible to believe that men could perpetrate the crime without any element of consent or provocation. ‘Judges were of the view that penetration of a woman is physically impossible without her ‘consent’ and that in any case women are ‘partially to blame for such abuse.’

Another ludicrous idea often encouraged by the judiciary is that of compromise. Whenever witnesses turn hostile, victims are advised to accept a compromise, which the court witnesses, but is unable and unwilling to act upon.

The court thus ‘restores’ her chastity in the public eye. Fortunately, the courts are prohibited from compounding a rape case.  Being a non-compoundable offence, compromise in rape cases has been confined to the bargains between community elders, victims’ kin, local authorities and the police, with judges looking the other way for the most part.

Power game

Women are often subjugated by men in power. In the Ruchika Girhotra molestation case, the protector, an IG, Haryana Police, S P Rathore became the tormentor. After 19 years, 40 adjournments, and more than 400 hearings, the court finally pronounced him guilty under Section 354 and gave him six months imprisonment.

In case of Anjana Mishra, it was the Advocate General of Orissa, Indrajit Roy, who attempted to rape her when she went to seek his help for getting custody of her children in 1998. Since she dared to report the case, she was gang-raped by three men, to teach her a ‘lesson.’ Roy was given anticipatory bail but was never arrested due to his political clout. Under public pressure when he finally resigned, his junior was made AG, putting Anjana in her place.

It is reminiscent of Bhanwri Devi’s case, a Sathin volunteer in Rajasthan, when she tried to stop a child marriage in 1992, she was gang raped by five men, including Ramkaran Gujjar, whose daughter’s marriage she had tried to stop. The male doctor at the primary health centre refused to conduct medical examination and at a Jaipur hospital the doctor certified only her age. Subjected to sustained humiliation, she was asked by the policemen to leave her lehenga as an evidence of rape. Bhanwri’s case inspired Visakha case, which brought about legislation against sexual exploitation of women at work place but Bhanwri could not get justice in a caste -ridden system.

Society must change first

Nandita Das

I enacted the role of a rape victim in three films; Bawandar, Pitah and Laal Salaam. So, I can claim to have some idea of what a woman goes through in a situation like gang- rape. While shooting the gang-rape scene for Bawandar, I saw some members of the crew nudging each other with suppressed and suggestive giggles, and I screamed. It was something I never do. But I felt violated. This was just an enactment, after all. I could immediately empathise with what an actual victim has to go through.

It is sad the way we treat this kind of abuse of women—with total disregard for the feelings of a woman. The society has to change—this is not something outside us, they come from within us. We need to shame the perpetrators, we need to talk more and more—in the open about these issues because, as we know, a rapist gets caught usually after a number of successful or unsuccessful attempts. What makes the rapist so daring is the silence of the women.

As far as monetary compensation is concerned, it finds justification in offering help to the victim to fight her case legally, which is often long-drawn. Otherwise it becomes like the flesh-trade. One must understand that the person is scarred for the rest of her life, simply because we have shrouded a crime under such weight of shame for so long that we do not want to deal with it.

What’s wrong if state takes responsibility?

Urvashi Butalia

There was a time when, after the Bhawnri Devi case, women’s groups demanded compensation, because Bhawnri was raped in the course of carrying out her duties as a government functionary, albeit an informal one (she was paid not as an employee but as a volunteer, something that enables the govt. to pay less than the minimum wage); therefore she was entitled to compensation. She was eventually given compensation but she did not use it, it created more problems for her— the community started saying rape was an excuse for taking money… so there is that element also. But if the state takes responsibility, then that can’t be altogether a bad thing

http://www.tribuneindia.com/2011/20110918/edit.htm#1

Justices delayed: SC down, Judge vacancies pile up

INDIAN EXPRESS

At a time when the collegium system of appointment of Judges is under attack, the Supreme Court — with over 50,000 cases pending before it — will soon be working at less than 75 per cent of its total sanctioned strength of Judges. By October 15, seven Judges of the apex court will retire, the largest number of retirements in a single year since Independence.

And that’s just the position in the country’s highest court. The biggest court in India, Allahabad High Court, has been functioning with just 62 of its total 160 approved strength of Judges, as reported by The Indian Express (nine more will join tomorrow). The Gujarat HC, with a sanctioned strength of 42, has 18 vacancies; while Punjab and Haryana HC has just 43 Judges, against a sanctioned strength of 68.

In all, data compiled by the government shows, of the total 895 posts of Judges sanctioned in the 21 HCs in the country, only 610 are currently filled — a gap of 285. This year, in fact, saw the highest number of posts falling vacant in HCs in a calendar year since 1990. However, only 41 new appointments have been made so far in 2011.

The subordinate judiciary is not much better placed. Data collected by the Supreme Court says that as of December 31, 2010, out of the sanctioned strength of 17,151 posts in states and Union Territories, 3,170 were vacant, with Bihar (389 vacancies), Gujarat (361), Uttar Pradesh (294) and Maharashtra (234) leading the list.

Even though the Supreme Court collegium headed by Chief Justice of India S H Kapadia has recommended three names — two HC Chief Justices and one Judge of Bombay HC — even if they are able to take oath by October 15, the number of vacancies in the apex court will still be six out of 31.

“Even though at every meeting of chief ministers and Chief Justices, the judiciary is requested to recommended names for elevation to the Bench at least three months before an anticipated vacancy, it is never done. Today, except for the Himachal Pradesh High Court, there is no court that is working at full strength. Though the sanctioned strength of the Jammu and Kashmir HC is 14, the court is functioning with just seven judges. In most cases, the HC collegium has not met even once in the last one year to recommend names,” said a senior government functionary. Sikkim, the country’s smallest court with a sanctioned strength of three judges, has just one judge, who was designated Acting Chief Justice after the resignation of Justice P D Dinakaran last month.

The other HCs with a significant number of vacancies are Andhra Pradesh (16), Bombay (14), Calcutta (14), Rajasthan (13) and Chhattisgarh (12). The highest number of appointments made in a single year was 110 in 2006 when Justice Y K Sabharwal was the CJI and H R Bhardwaj the Union law minister.

State biggest land grabber, says Supreme Court

NEW DELHI: The Supreme Court on Tuesday slammed the authorities for taking advantage of the “colonial law” on land acquisition to divest farmers of their prime agricultural land benefitting the rich and paying “pittiance” to common men. The apex court said a “sinister campaign” has been launched by various state governments to take adavantage of the law against the poor people for taking away the land and giving it to builders where multiplexes, malls, posh residential complexes are developed which are beyond the reach of common men.

“Do you think judges live in fools’ paradise”? snapped a bench of Justices GS Singhvi and AK Ganguly when senior advocate PP Rao responded to a question that the residential complexes were being developed for the “needy”. “You are building hotels, malls, commercial complexes, townships where common men have no access. Does it come under the perception of public purpose for which the land have been acquired?”

The bench questioned the change by Uttar Pradesh government in land use in Greater Noida and said “this is not the plan for which the land is acquired. How different notifications came out for changing the use of land”. The sharp remarks were made by the bench during the hearing on petitions filed by Greater Noida Industrial Development Authority and real estate developers and builders, including Supertech and Amrapali, challenging the Allahabad high court order which had quashed the notifications for land acquisition in Greater Noida adjoining the national capital.