Violation of concept of open court in Kerala

Photo by Carptrash at the English language Wikipedia The continuing restrictions on the media from entering court premises in Kollam, Kochi and elsewhere in Kerala are in violation of Constitutional principles, common law and freedom of the press.

It undermines the concept of open justice which is one of the fundamental tenets of fair trial in common law. It is a venerated concept which is considered indispensable for fair trial. If some advocates and judges think that they can work the system without media, they are treading a dangerous path. Soon, the legitimacy of administration of justice itself will be in question.

The concept of open court, one should note, is just not of media access. It encompasses the right of public including lawyers not involved in the proceedings to be present in court. The media act as the eyes and ears of the public. Many courts across the democratic world are extending these rights by allowing copying of exhibits and even televising of proceedings.

It is surprising that some lawyers and judges are thinking in the opposite direction now. It is possibly an indicator of rot in the system. Many unhealthy trends are creeping into the administration of justice and presence of media is a hindrance to that. (This is not to say that unhealthy trends are absent in media.)

Many government pleaders these days are not always acting in the best interests of the government. Years ago, many people got favourable verdicts in forest cases since the government pleaders did not question fake documents and arguments presented by the plaintiffs. This forced the government to come up with a law for takeover of ecologically fragile lands. This led to another set of litigations which are yet to end. Besides, some innocents were harmed by forest officials in the process.

It was the environmental organisations and media, not necessarily those reporting from courts, which brought out developments like this. In the absence of media access to court proceedings, instances of liaison between lawyers appearing for government and plaintiffs in civil cases and accused in criminal cases are likely to grow.

Open justice is key to rule of law in democracies and any departure from that should be explained. However, some judicial officers have sought to limit media access to courts without proper explanations. The principle of open court ought to be upheld over concerns of friction or conflict. Lack of openness in court proceedings undermine rule of law. As philosopher and jurist Jeremy Bentham had pointed out open justice is the keenest spur to exertion and the surest of all guards against improbity.

Rape that shocked Kerala

Protest in Thiruvananthapuram over rape and murder of law student at Perumbavoor

The brutal rape and murder of the law student in her home by an unknown person comes as a warning to literate Kerala.

Many had not thought that incidents like that in Delhi could visit Kerala though there was a previous incident of a girl being pushed out of train and raped on the tracks while she lay bleeding and died.

“The distance from Perumbavoor to our homes is less than that from Delhi to Perumbavoor,” said a facebook post demanding justice for the victim. The same fear was expressed by people who attended protest gatherings before the Secretariat in Thiruvananthapuram on Wednesday.

In fact, two other dalit girls too had been raped recently— one before the Perumbavoor incident at Attingal and another on Wednesday at Varkala, in Thiruvananthapuram district. There were two other reports include rape a minor by her father.

There are complaints that the police did not undertake a proper investigation of the Perumbavoor case until the issue gained attention in the social media and the post mortem report came out describing 38 injuries suffered by the victim.  Questions have also been raised on whether the post mortem was done properly. As the protests grew putting even the government, which is facing an election, in the dock, the police swung into action. They have deployed around 80 policemen for the investigation and taken several people into custody.

Yet another human rights issue may soon arise if the police keep them in custody for more than 24 hours, for there is no confirmation that any of them is the culprit.

As campaign for Assembly elections are going on, the issue is receiving wide traction. The Opposition leaders are blaming police for delay in the investigations.  “It seems that the police are interested only in saving their political masters from corruption charges,” Leader of the Opposition in the Assembly V. S. Achuthanandan told an election convention in Thiruvananthapuram.

Kerala Home Minister Ramesh Chennithala and Chief Minister Oommen Chandy reacted quickly. They visited the home of the victim, a single room house on ‘puramboke’ land. Mr. Chandy also called on her mother who is in hospital, but was met with protests from activists of Democratic Youth Federation of India and Social Democratic Party of India.

Mr. Achuthanandan too visited the mother who was away from her house to seek help to build a new house when her daughter was brutalised. “This kind of brutalities will occur when an inept Chief Minister is ruling the State,” he told the media after the visit.

It may be recalled that Mr. Achuthanandan had come to power in 2006 promising that rapists would be handcuffed. But nothing like that happened, his critics point out.

Mr. Chandy said that the culprit would be brought to book. ”None should politicise the issue. Investigations are progressing.”

If the clamour after the Nirbhaya incident in Delhi was for tightening of the laws and increasing of the severity of punishment for rape, that kind of discussion is no more heard in Kerala. Apparently, people have realised that legislative measures have not helped. However, the demand for retributive justice has only gone up. Several people who participated in a phone-in television programme were heard demanding that the culprit should be delivered to the public for them to punish him “properly”.  A few actors also raised similar demands. If such clamour gains ground, it could undermine the rule of law. A few days ago, people had acted against a migrant worker who died after the local people left him on the road with his hands and legs tied.

But, one of the protesters before the Secretariat lamented that none of those who were speaking at the protest meetings of the social media were proposing solutions.  “If the victim was housed in a better environment, the people around there would have reacted and saved her,”  he (S. Jeevan) said.

But, Seeta Dasan, who is from a fisherman family, stressed that the main issue was not whether your homes are secure. “The issue stems from the fact that you are a woman.”

Perhaps, sociologists and criminologists will have to delve into the issue and find out what is wrong with the society. Still, the solutions seem to be far off as traditional values have taken a beating and new ones had not been found to cope with new environments created by the entertainment media, the Internet, new work places and changing social milieu.

 

The law and the Delhi rape case

Protests are raging in Delhi over the release of the youngest of the convicts in the gang-rape case of December 2015 who was a minor at the time of commitment of the crime. The Delhi Women’s Commission has approached the Supreme Court demanding that the juvenile, now a man, should be held beyond the period of his sentence by the Juvenile Justice Board.

The Commission either does not know the law or ignoring it. People can be punished only according to the law that was in force at the time of commitment of the crime and a prisoner has a right to be free on completing his sentence. It should be a matter of concern that the Women’s Commission, which is a statutory body, does not appreciate these fundamentals. The Commission should be concerned not only about women’s rights but also about child rights. India’s juvenile justice law is one drafted keeping international covenants on child rights in view.

One of the arguments is that boys in these days are mature enough at the 16 years. If this to be accepted, it has to be established through proper studies. An amendment of the law without such studies, and on the basis of a popular upsurge, will be a grave injustice to children. Even if the law is amended they cannot be enforced retrospectively.

An argument advanced by the Commission and others is that out in the open, the convict would be a threat to the society. He could be, or he may be on the path of being reformed. (Is not the release of every goonda or murderer give rise to such a risk? A bigger risk could be persons with criminal backgrounds in our legislatures!) If he had been radicalised in reform facility as reported, is not the system or the authorities at fault?

If we look at the mater more closely, one can see that more than the boy in question, the government and the society is responsible for what has happened. The boy is son of a mentally sick father. Apparently, he did not get school education which was his right. Instead, he was apparently forced to seek work. It is not surprising that he could find work only in a bus that was routinely breaking the law with the connivance of authorities. He landed among people who had criminal tendencies and attitudes. (One of their attitudes was one of moral policing even while being in the wrong side of the law. But this is an attitude that some of those close to the ruling class is now trying to perpetuate.) Under these circumstances, it was only natural that he grew up to be a criminal.

What happened in Delhi would not have occurred if the government had enforced motor vehicles rules strictly. How come that an underage is employed in a bus? How could the bus operator break rules? These should be bigger concern than the release of a single prisoner. The released prisoner may be a threat to society, but bigger threats are looming elsewhere.

(Update: The Supreme Court has rejected the Women’s Commission plea.)

 

 

 

Legislation will formalise harthals

Harthal at ChalaiThe Government is proposing a legislation to bring restriction on organisation of harthals. However, it could very well end up being a piece of legislation granting political parties and other organisations a right to call for harthal. It is proposed that the organisers of harthals should announce it three days in advance.

The government could ban it if it is convinced that there would be the possibility of violence. Forced closure of shops and blocking of movements of people will attract imprisonment of up to six months or a fine of Rs. 10000 or both.

Harthal was a form of direct action devised by Gandhiji to protest against the colonialists and that too against acts like the massacre at Jallianwala Bagh. The Congress and its leaders, at that time, were totally committed to non-violence. Only a non-violent organization has the right to call harthal (none of today’s political parties could be classified as one). It is a non-violent mode of protest.

Nobody joins harthals willingly these days. Harthal, called by even minor political parties, is a ‘success’ because there is a threat of violence behind it. So, provisions in the proposed legislation such as one empowering government to ban harthals, if it is convinced that there would be violence, ignores the fact that harthal is inherently violent today. Such a provision will only be a political tool in the hands of successive governments. (Will a ruling party/front in the State ever be ‘convinced’ that there would be violence if it is a harthal against the policies of a Central government under a different party/front?)

So, action should be mandated against any political leader who makes a call for a harthal since threat of violence is inherent in such a call. If some people locally and spontaneously observe a harthal on their own free will over a murder or something like that, let it be countenanced. That is, harthal as such need not be banned, but making a call for harthal through mass media, public address systems and the like should be banned.

This automatically rules out proposals like announcement of harthals three days in advance. Even if such announcements are made, the hardship of people will only be diminished and not eliminated. Even for a journey to Bangalore these days by bus, one has to book a week in advance. (Train/air reservations are made months in advance). Harthal is not a suitable mode of protest in cities that work 24×7. The loss of lives, property and production caused by harthals is significant and will not be mitigated by a notice.

Forced closure of shops and forced restriction on movement of people are actually violation of fundamental rights. There are already provisions in the IPC and other laws to check such acts. Bringing fresh laws is not answer to failure of the government to enforce existing laws. In fact, there is a need to prune the statute book; but recommendations made by law reforms committee and commission are gathering dust.

The Supreme Court and the High Court, which are empowered to enforce fundamental rights even in the absence of laws, have already banned bandhs. The problem now is that the police are not taking cognizance of bandhs masquerading as harthals.

If at all a new law is to be enacted, it should be to define harthal/bandh and ban calling of harthals by political parties and other organisations with its inherent threat of violence. Fine of Rs. 10000 is insufficient as the damage caused by harthals is much more. Victims should be able to claim compensation separately for death, injury and loss of property. Express provisions should be included for this purpose. Provision should also be there for traders to claim compensation against those forcing closure of shops by violent means.

The Government should not formalise a ‘right to call harthals’ by providing for a notice procedure.

Part II: Laws that make you insecure

Today, the country has so many laws that it makes the citizen insecure. The provisions in the penal law are so many that a police officer can easily book you even if you are not a criminal. Ordinary behaviour can easily invite provisions of the criminal law if someone is bent on booking you.

It was only recently that a Mumbai girl was booked under Section 66A of the Information Technology for an indirect criticism of Bal Thackeray on the Facefbook page. To top it, a friend of hers who liked the post was also booked under the law.  (Intolerance is growing to such levels that you cannot criticise Mahatma Gandhi, Ambedkar or Indira Gandhi. Films like Papilio Buddha  and Midnight’s Children  faced protests and censure because they criticised Mahatama Gandhi and Indira Gandhi respectively. This was despite the fact that all these people were politicians and Thackeray had only passed away the previous day.) Sedition charges had been foisted against fishermen agitating against Kudamkulam nuclear project in Kanyakumari district and the Kanpur-based cartoonist Aseem Trivedi who criticised the establishment. A doctor and human rights activist Binayak Sen faced sedition charges because he sympathized with the naxalites. Official Secrets Act and other laws had been misused to stop exposition of corruption and other misdeeds. These bode ill for India’s democracy.

Now, there is a hue and cry that capital sentence should be awarded to rapists after the rape on a bus in the capital city. The brutality of the offence is in no doubt. However, it has enough laws to deal with such crimes and they suffice. Politicians make demands like death sentence to get the people on their side when public anger is at its highest. However, amendment to criminal laws are something to be contemplated with due diligence. Rape is a crime in which innocents too could be easily implicated. Besides, the onus of proof is on the accused. So, it would be unwise to increase the penalty for the crime.

When incidents of brutal attacks occur, various other provisions of the penal code will naturally be applied. When a girl was thrown out of the train, raped and killed near Shornur in Kerala some months back, the accused faced murder charges. The Delhi incident would attract the charge of causing severe hurt if not attempt to murder.

Besides, social factors and realities have to be taken into consideration and addressed while trying to contain increasing number of such crimes. While the people in the country are getting increasingly exposed to Western culture and media, we do little to foster healthy relationships between men and women. A lot of hypocrisy exists in the country when it comes to sexual mores. Behaviour is tightly controlled on one side while worst behaviour becomes the norm when control is absent. In Kerala, there are separate seats for men and women on bus, but harassment of women is possibly the highest in crowded buses of Kerala. It may be worth noting that incest may grow when prostitution is tightly controlled. So, social interventions are the need of the hour rather increasing the penalties for sexual offences.

State with laws that provide for severe punishments for even minor offenses usually lets the rich and powerful to escape and brutalises the poor and powerless. The statue book now has so many laws that none could hope of knowing all, and ignorance of law is no excuse. Given the ground realities, it is impossible for a citizen to live in this country without breaking the law or giving bribes. (Giving bribes is also an offence). Some laws like prohibition of photography of dam and buildings are ridiculous. There are many laws in the statute book that are no more required. However, they remain. A recommendation to delete around 100 such laws in Kerala six years ago is still awaiting action.

Laws should be devised in such a fashion that it should make sense for the ordinary citizen to obey them rather than break them. Would the majority abide by the law, or is it logical to have a law in certain areas should be the consideration before the law makers. Making laws that would be broken by the majority will only destroy respect for law. Currently, it is impossible to be totally law-abiding in India, and this diminishes respect for law.

Part I: Tightening laws to hide failure in their enforcement

Tightening laws to hide failure in their enforcement– Part I

The Kerala government has been resorting to new legislation with stringent provisions just to hide its failure in enforcement of the laws and administration of justice.

It brought the Antisocial Activities (Prevention) Act, popularly known as the Goonda Act, as public protest grew over activities of goondas and quotation gangs in the State. The Act provides  for preventive detention of goondas— that is imprisonment without trial, amounting to violation of human rights.

Administration of Justice

Image courtesy: digitalart/FreeDigitalPhotos.net

The question whether such Act was required is debatable. Most of the goondas against whom public ire was growing had dozens of cases against them. Yet, they were getting bail and committing fresh crimes. The prosecution was repeatedly failing to get convictions. This was because of the protection the goondas were getting from politicians and officials. The law was brought to hoodwink the public.

Naturally, it failed to check the goonda menace, as the political and official patronage of goondas continued. Since public protests grew over operation of quotation gangs, the government proposed tightening of the law. The period of preventive detection was extended from six months to one year. So, the government is having a brief reprieve.

The government brought a law to take over ecologically fragile lands after it failed conduct forest cases properly in courts. Most of the land in question could have been retained by the government under existing laws, if the government would have fought the cases properly in courts. Several cases were won by plaintiffs by producing forged documents which went unchallenged during trial. The law was later diluted since complaints grew over its use.

When the Land Utilisation Order failed to check conversion of paddy fields, the government replaced the order with legislation to protect paddy fields and wet lands. However, the law did not yield any results, as it could not be implemented effectively. The politicians themselves worked to grant exemptions and protect those converting paddy fields. In fact, the issue was one that could have been addressed better by eliminating the economic reasons for conversion of paddy fields. Similar is the case with law for protection of rivers where laws alone is not the answer. The government would have done better by taking measures to improve the availability of sand and taking the lucre away from sand mining. Pollution could have been tackled through existing laws.

Recently, it brought legislation to check charging of excessive interest rates by money lenders. This was done against the background of suicides by farmers and others because of indebtedness. This was when the enforcement of existing money lenders Act was lackadaisical. Though it is four months since the Ordinance was promulgated, no action had been against any money lender  while many borrowers continue to struggle.

When the government and local self governments failed to set up proper facilities for treatment of waste, it brought legislation recently mandating processing of waste at source. Several of its provisions are difficult to enforce, simply because of the difficulty in setting up processing units at every establishment and home. Governments and local bodies fail to come up with solutions despite brave words. Chief Minister Oommen Chandy, for example, had promised to solve the problem in six months. But, it is one year now. After six months, he turned to the legislative solution.

What the tightened laws often achieve is only increase in the level of corrupt
Part II: Laws that make you insecure

Preventive detection, rule of law and human rights

The government is planning to amend the Anti-social Activities (Prevention) Act to enhance period for preventive detention of goondas from six months to one year. This is a measure intended to douse public anger over the free reign of quotation gangs and political murders. It does not address the real issue.

The real issue is that the conviction rate of goondas is not very high and that they manage to get bail and paroles easily. This happens because of their liaison with politicians and police officials.  Kodi Suni, who is accused in the T. P. Chandrasekharan murder case, for example, is accused in more than two dozen criminal cases. How come people like him could freely roam around and engage in criminal activities including murders.  This is not because we did not have stringent laws. Note the trouble the Italian marines had in getting bail and the conditions attached to the bail.  In case of hardened criminals, the bail conditions will be stringent. They manage to undermine the system because of the assistance they are getting from politicians and police officials.

What the government is trying now to hoodwink the public into thinking that the government is acting against the quotation gangs and criminals. But what the law will achieve is to help the administration to hold goondas in jail for a little longer, that is, till the public anger would subside. They would be out of jail after another six months as the cases against them may not lead to convictions. Given the condition of jail administration, they would also be able to plan criminal activities including murders from within jail. If at all they are convicted, governments would release them from jail after some years.  Even an accused in despicable murders like that of K. T. Jayakrishnan had been released after eight years while several others who participated in the murder had not been arrested.

On the other hand, the Act has the potential to be misused.  Measures like preventive detection itself are a human rights violation in most circumstances. When preventive detections become routine, one cannot say it the rule of the law.

Proscribing adolescent sex by law

If I recall correctly, it was Erskin May who had said something like that no law could be enforced that the majority is unwilling to obey.

To some extent, the Protection of Children from Sexual Offences Bill 2011, passed by the Indian Parliament, falls into this category. The Bill seeks to make even consensual sexual contact with a girl under 18 a criminal offence. This law is proposed to be enforced when 30 per cent of the girls in India aged between 15 and 19 are married off. According to a report of a survey conducted by UNICEF between 2000-2010, 22 to 24 per cent of women in India became mothers before attaining adulthood. About eight per cent of the adolescents had sex before the age of 15.

The law is proposing to proscribe all this. How effectively this can be done is a moot question. However, the more serious implication of the law is that it seeks to make sex between consenting adolescents a crime. Young boys could be hauled up for having a consensual sex with their girl friends. This can often turn into police officials terrorizing boys dating or even talking to a girl, given the nature of law enforcement authorities in the country. The girl too could be under risk under such situations.  It could also lead to corruption rather than protection of girls, as the punishment could be jail for three years or more. Even eve teasing that could be termed as sexual harassment and would attract up to three years of jail.

The Bill seeks to make sexual offences against girls by those in authority an aggravated crime attracting longer terms of imprisonment. This is a welcome measure. The law should also discriminate between those committing organised crimes against girls or men aged above 21 exploiting girls and consensual teen age or adolescent sex. Actions resulting from the love or even lust by adolescents should not be penalised. What are needed here is guidance and sex education and not a law proscribing sex.

Details of the Bill