Monthly Archives: June 2012

Preventive detection, rule of law and human rights

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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.

Not being a vote bank, endosulfan victims fail to get their due

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The government has declined to write off the loans for endosulfan victims though it is offering debt relief to farmers and fishermen.  The government says it did not have the money to write off the loans of the families of the victims amounting to about Rs. 50 crores while it is willing to find bigger sums for farmers and fishermen.

BLINDED FOR LIFE: Devikiran and Jeevanraj, identified as vicitms of endosulfan by government, with their mother

The loans were taken mostly taken for the treatment of the victims and many families are not in a position to repay them.  The government plans to pay the victims compensation of Rs. 5 lakhs / Rs. 3 lakhs recommended by the National Human Rights Commission. These are to be paid in installments and through the banks.  For many, this would only suffice to repay their loans. Some may not even get the amounts as the banks would adjust them against their loans.

Compensation for victims can be considered adequate only if that covers the treatment costs and ensure a decent living. Farmers and fishermen could get their demands conceded because they are better organised and the politicians have stake in terms of their votes. The endosulfan victims are no a vote bank. However, the situation is changing with the victims and their families themselves getting organised and coming forward to fight their cause. (Till, now the fight for justice to the victims were being fought by outsiders or those marginally affected by the spraying of the pesticide by the State-owned Plantation Corporation of Kerala). The government will heed them when get organised and stand together forgetting any communal or other considerations.

Prerogative of the legislator to be out of jail

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Should it be the prerogative of the legislator who is in police or judicial custody or serving a sentence to attend the legislature?

G. Mohan Gopal

G. Mohan Gopal, Director, Rajiv Gandhi Institute for Contemporary Studies, New Delhi, delivering the lecture in Trivandrum

G.  Mohan Gopal, who delivered a lecture on “Parliamentary Prerogatives and Judicial Activism”  in connection with the Diamond Jubilee of Kerala Legislature here on June 7 said that the judiciary was not according sufficient protection to legislators from arrest and denial of opportunity to represent their constituency in the legislature.  What Dr. Gopal is saying is that people like DMK leaders Kanimozhi or A. Raja should have been allowed to attend Parliament while in judicial custody or should have been released from jail.

It is notable that the courts did not grant bail to the accused for fear that they would interfere with the investigation and influence witnesses.  Suppose that R. Balakrishna Pillai who was condemned to undergo one year’s imprisonment was a member of the Assembly. What would be the justification for sending him out of jail to attend an Assembly session?  We know that it is difficult to successfully prosecute a politician in India and even if he is sentenced, it has been found to be difficult to keep him in prison.

Dr.Gopal’s argument is that legislators represent the people and their voice should be heard in the legislature. Well, people elect politicians despite their knowing about their criminal background. Doesn’t that mean that they want criminals to represent them? If we accept that argument, it would undermine basic tenets of rule of law.

Then, why do people elect criminals? Dr. Gopal said that legislatures and judiciary exercising power to punish for contempt was a result of feudal and colonial mindset.  In India, many are still to imbibe the concept that all are equal below the law.  The caste system, which prescribed differential punishment for the same crime depending on caste and the principle of dynastic succession still influence Indians. That is why they countenance and make arguments in favour the like of Kanimozhi.

Even six decades after independence, we have not freed ourselves of feudal, colonial and casteist mentalities and related belief in merit of dynastic succession.

Proscribing adolescent sex by law

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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