Tuesday, 29 May 2012

The Conversation - V

(On Sexual Harassment at Work Place, Safety of Women - Law and Remedies...)

Me: What's the matter ? The tongue that never ceaseth, lies but taskless ! ?

Avinash: Nothing, brother. Just a little something chewing my nerves.

Me: Ok, you can let 'em chew mine for the time being. Speak up.

Avinash: (Sighs). Well..umm..I'm not sure if it would be right for me to share this information with you.

Me: I didn't know you had information concerning National Security.

Avinash:  It concerns somebody's privacy.

Me: See, if you think that it's something in which I can help you out then I think you should tell me. You can keep the names to yourself. OK ?

Avinash: I don't know......Ok.
There's this friend of mine who works as an Executive in a multinational IT company. She bagged this job a couple of years back during her college's campus placement. Since the last 2 years she has been very upbeat about her job profile and her office life. In short she enjoyed her job, till  couple of months back, when I noticed that she started remaining depressed and became quite irritable.

Me: Ok

Avinash: Despite my repeated queries she never disclosed the cause, till yesterday, when I caught her crying and insisted her to tell me what's going on..............

Me: Please don't hesitate...continue.

Avinash: After a lot of persuasion she told me that she has been denied her due promotion.

Me: Alright. Listen. Things like these happen. You know what,  life isn't always fair. You should encourage your friend to move on and work with double the verve, so that she definitely wins her promotion the next time.

Avinash: It's not that simple. What you just said was also somewhat my reaction, but there's more to it than meets the eye buddy.

Me: Tell me.

Avinash: After assuring her that our little talk will remain private, she told me the real story behind denial of her promotion.

Me: Go on

Avinash: A couple of months ago, their head office sent a new Office Manager to their local office here. Initially he was quite affable towards everyone including my friend, but eventually he started picking her petty faults and began to publicly humiliate her.

Me: Are you telling me that her previous bosses had never done such things ?

Avinash: I asked her and she told me that she has been one of those few employees whom their bosses always look out for in times of need, for by her sincerity and mettle she had carved quite a name for herself in the office.

Me: Ok

Avinash: So, initially she could not see beyond the apparent and kept thinking that it must be her fault. One day her boss called her to her chambers. After giving her a quick dictation for an official correspondence he embarrassed her by asking something very personal to her. Now please don't ask me what's the question. Just know that it relates to something intimate & sexual....Ok ?

Me: Go on go on..

Avinash: Things didn't stop there, he repeatedly kept inviting her for late night dinners. He'd often talk obscene stuff right in her presence. Then one day he invited her to join him on a two day vacation trip to a nearby tourist spot. My friend decided to end the matter for once & for all. So she finally explained to her boss that she isn't the kind of girl he thinks her to be and that it wold be best if he stopped persuading her.

Me: What was his reply ?

Avinash: At that moment there was none. But after a harrowing two months of public display of bossiness, he finally took his revenge by not recommending her promotion to the Head Office. And thus a hard working, sincere employee, having dedicated two and a half years of her sweat and blood was denied recognition just because her pervert boss could not have his way with her.

Me: Yeah, a classic case of  sexual harassment at workplace.

Avinash: What ?

Me: Sexual harassment at workplace

Avinash: Did you just coin that phrase?

Me: No I didn't coin it. What you described is a case where a man, taking advantage of his official position, is indulging  in indecent behavior with his subordinate colleague and since this is happening in the office, we refer to it as a case of sexual harassment at workplace.

Avinash: Ok. Tell me everything about it, may be this can help my friend.

Me: In 1997, the Supreme Court of India while delivering its landmark judgment in the case of Vishakha Vs. State of Rajasthan, recognized the menace of sexual harassment at workplace. The Hon'ble Court not only held it to be a violation of human rights, but also laid down a comprehensive definition and set of guidelines regarding the problem and issued directions for immediate follow up action by the incumbents.

Avinash: What had happened in the Vishakha case ?

Me: A female social worker in a tribal village of Rajasthan, fighting, if I'm not mistaken, against the vice of child marriage, was brutally gangraped by men who were opposed to her work. Though that case was the subject matter of a separate criminal trial, the incident brought to the fore the hazards to which working women of our society are exposed. Aggrieved and enraged by the incident, an NGO by the name of Vishakha alongwithe other social activists, filed a class action petition in the Hon'ble Supreme Court with the aim of focusing attention towards this societal aberration, and assisting in finding suitable methods for realization of the true concept of ‘gender equality’; and to prevent sexual harassment of working women in all work places through judicial process.

Avinash: Are you telling me that at a time as late as 1997 when India had already claimed to be a welfare State, there was no legislation to offer protection to the class of working women.

Me: No. It was with this objective only that the petition was filed before the Supreme Court, so that till appropriate legislation is enacted, the Supreme Court finds an effective alternative mechanism to fulfill this felt and urgent social need.

Avinash : Just a little while back, you said that sexual harassment amounts to violation of human rights, how is that ?

Me: Of course it does. Not only human rights but also constituitional rights guaranteed under our Constitution. You see aach such incident results in violation of the fundamental rights of ‘Gender
Equality’ and the ‘Right to Life and Liberty.’ It is a clear violation of the rights under Arts. 14, 15 and 21 of the Constitution.  One of the logical consequences of such an incident is also the violation of the victim’s fundamental right under Art. 19 (1)(g)  (i.e. to practice any profession or to carry out any occupation, trade or business).

As per "The Protection of Human Rights Act, 1993" the term human rights means the rights relating to life, liberty, equality and dignity of the individual guaranteed by the Constitution or embodied in International Covenants and enforceable by Courts in India. So upon a conjoint reading of all the Constitutional safeguards provided to women in our country and the definition of human rights under The Protection of Human Rights Act, 1993, it is clear that sexual harassment at workplace is not a trivial folly but an act as grave as one resulting in violation of the victim's constitutional & human rights. So its bound to attract the highest form of penalty possible.

Avinash: But you said that there are no laws in place, to counter this evil.

Me: By laws I meant that there are no Parliament made laws. But in the Vishakha case, the Hon'ble Supreme Court seized the opportunity and besides laying down the meaning and definition of sexual harassment at work place, also drafted a set of comprehensive guidelines to counter the problem, . That judgment has, by virtue of the existing legal principles, the force and effect of law, till an appropriate legislation is enacted by the Parliament. While so doing, the Supreme Court has relied on CEDAW (Convention for Elimination of All Forms of Discrimination Against Women ) a sort of treaty / international accord which India has signed and ratified. But that by itself does not translate the treaty into a domestic law, not until our Parliament has formally passed a legislation touching that subject matter.

Avinash: Alright. Tell me what exactly is sexual harassment at workplace.

Me: As per the judgment of the Supreme Court, sexual harassment at workplace is defined as

 any such unwelcome sexually determined behaviour (whether directly or by implication) as :
a) Physical contact and advances;
b) a demand or request for sexual favours;
c) sexually coloured remarks;
d) showing pornography;
e) any other unwelcome physical, verbal or non - verbal conduct of sexual

Avinash: This means, what my friend's boss did, clearly falls in this category of behavior and thus amounts to sexual harassment at workplace.

Me: You bet. Why else do you think I said that it was a classic example. There's more.

Avinash; Yeah sure. Go on

Me: The legal protection is attracted as soon as any of these objectionable acts is committed in circumstances whereunder the victim of such conduct has a reasonable apprehension that in relation to the her employment or work, such conduct can be humiliating and may constitute a health and safety problem OR that it is discriminatory, for instance when the woman has reasonable grounds to believe that her objection against such action would disadvantage her in connection with her employment or work including recruiting or promotion or it may create a hostile work environment. Now it is immaterial whether the victim / complainant is drawing salary OR an honorarium OR working voluntarily. It is also irrelevant  whether she is working in Government, public or private enterprise.

Avinash What are the guidelines ?

Me: The Supreme Court, by its judgment has enjoined a heavy duty upon the employer to prevent and / or deal with instances of sexual harassment at workplace. It shall be the duty of the employer or other responsible persons in work places or other institutions to prevent or deter the commission of acts of sexual harassment and to provide the procedures for the resolution, settlement or prosecution of acts of sexual harassment by taking all steps required.

So far as prevention is concerned :-

All employers or persons in charge of work place whether in the public or private sector should take appropriate steps to prevent sexual harassment. 

Without prejudice to the generality of this obligation they should take the following steps:

(a) Express prohibition of sexual harassment as defined at the work place should be notified, published and circulated in appropriate ways.

(b) Awareness of the rights of female employees in this regard should be created
in particular by prominently notifying the guidelines ( and appropriate legislation when
enacted on the subject ) in a suitable manner.

(c) The Rules/Regulations of Government and Public Sector bodies relating to conduct and discipline should include rules/regulations prohibiting sexual harassment and provide for appropriate penalties in such rules against the offender.

(d) As regards private employers, steps should be  taken  to  include  the aforesaid prohibitions in the standing orders under the Industrial Employment (Standing Orders) Act, 1946.

(e) Appropriate work conditions should be provided in respect of work, leisure, health and hygiene to further ensure that there is no hostile environment towards women at work places and no employee woman should have reasonable grounds to believe that she is disadvantaged in connection with her employment.

Avinash : Can't the victim initiate criminal proceedings against the perpetrator ?

Me: Why not? The Supreme Court has made it clear that none of its guidelines will prevent the victim from taking recourse to any other remedy if available to her under the civil or criminal law of our country. Furthermore, the Hon'ble Supreme Court has pronounced that it is obligatory on the employer that where such conduct amounts to a specific offence under the Indian Penal Code or under any other law, the employer shall initiate appropriate action in accordance with law by making a complaint with the appropriate authority. In particular, it should ensure that victims, or witnesses are not victimized or discriminated against while dealing with complaints of sexual harassment. The victims of sexual harassment should have the option to seek transfer of the perpetrator or their own transfer.

Avinash : Suppose the misbehavior is such that it does not attract criminal action, then what options are left with the victim ?

Me: Where such conduct only amounts to misconduct in employment as defined by the relevant service rules, appropriate disciplinary action should be initiated by the employer in accordance with those rules.

Avinash: Ok. tell me one thing, whenever a person feels that he's made a target of sexual harassment then whom should that person go to.

Me: You've raised a vital question. The Supreme Court order also speaks elaborately on establishment of Complaint Mechanisms. Thus the law is that whether or not a particular conduct constitutes an offence under law or a breach of the service rules, an appropriate complaint mechanism should be created in the employer’s organization for redress of the complaint made by the victim. Such complaint mechanism should ensure time bound treatment of complaints. The framework of that mechanism ought to be in the prescribed manner. That is to say the complaint mechanism,, should be adequate to provide, where necessary, a special counselor or other support service, including the maintenance of confidentiality. The Complaints Committee should be headed by a woman and not less than half of its member should be women. Further, to prevent the possibility of any undue pressure or influence from senior levels, such Complaints Committee should involve a third party, either NGO or other body who is familiar with the issue of sexual harassment. The Complaints Committee must make an annual report to the Government department concerned of the complaints and action taken by them. More to this, employees should be allowed to raise issues relating to sexual harassment at workers’ meeting and in other appropriate forum and it should be affirmatively discussed in Employer - Employee Meetings.

Avinash: What if a third person, say a person not under the control or employment of the office, causes harassment to an employee ?

Me: Where sexual harassment occurs as a result of an act or omission by any third party or outsider, the employer and person in charge will take all steps necessary and reasonable, to assist the affected person in terms of support and preventive action.  None of the guidelines laid down by the Supreme Court will prejudice the remedies available under the civil, criminal laws of our country including those available under the Protection of Human Rights Act, 1993. We all must understand that the guidelines and directives of Supreme Court, if disobeyed, shall attract Contempt action against the erring individual / organization, besides other penal hardships. 

Avinash: With such full proof mechanism in place I'm sure women must be feeling much safer in their workplaces.

Me: The answer is a shocking 'No'. There has been widespread breach of the guidelines, rarely have any complaint committes been set up. There has been a blatant disregard for the rules. Its not that law is toothless, rather what happens is that the victims in most cases refuse to go public with the fight against sexual harassment at their places of employment. I guarantee you, if the matter is taken before the High Court or the Supreme Court, then everyone starting from the company to each and every person responsible for the day to day administration of the company including its HR (Human Resource) department heads will face the wrath of the Courts. For their non compliance of the Visakha case guidelines, not only would have led to the suffering of some innocent person but also would have resulted in an undeniable case of Contempt of Court. 

Avinash: Is there any chance of any legislation being drafted in the near future ?

Me: Well, from what I've read, our Parliament has already given its nod on 10th May, 2012 to the Protection of Women from Sexual Harassment at Workplace Bill. I haven't had the opportunity to read the bill. But I hope that its a good bill with a holistic approach, cognizant of the Supreme Court's guidelines, for the protection of women at their workplaces.

Avinash : What advise would you give to my friend ?

Me: Honestly, I will advise your friend to consult a lawyer, only if she is serious to fight against her capricious boss and willing to speak freely about the facts to her lawyer. However, for the time being, in my considered opinion, she should immediately write a letter to the heads of the relevant department of her company informing them about her grievances. She has to be very clear about the whole series of incidents that she has undergone. She should not hide anything. She has to make out in that letter,why she thinks that the actions of her boss amount to sexual harassment at workplace as defined by Supreme Court of India. She has to also point out the sorry state of affairs including the absence of any complaint committee in their company for which she is forced to bring this matter to their notice. This would not only point out to the department heads that she's aware of the law but also remind them of the fact that they have committed contempt of court by not setting up any complaint committee. She should send that letter by registered post - acknowledgment due and keep a copy of the letter as well as the postal receipt. If they ignore her attempt, then ask her to write a reminder, this time stating that unless appropriate actions are not taken to redress her grievances then she'll be forced to move the High Court to enforce her fundamental  & constitutional rights (as recognized by the Supreme Court in the Vishakha judgement ) which besides involving penalization of the company will also bring bad publicity for their organization.
Its always advisable to start consulting a lawyer in such matters before taking any step, and if need actually arises to move the Courts, then she may approach a bona fide NGO who'll not only support her financially but also give moral courage, during the legal proceeding.

Ask her to take these steps and let me know if I could be of any other help in this matter.

Avinash: Just curious,...whether a man can be victim of sexual harassment at workplace ?

Me: On a plain reading, I do not find any such indication in the definition given by the Court, which says that only females can be victims of sexual harassment at workplace. Though I'd definitely say that it is primarily for their protection at places of their employment, that these guidelines were drafted. But that does not mean a male victim is remediless. However sometimes the interpretation of a particular law can be tricky. Therefore though this is my personal opinion, the matter may be subject to deeper analysis and interpretation by appropriate authorities. The matter may also considerably change for males, once the Protection of Women from Sexual Harassment at Workplace Bill is enacted into law. For as its name suggests it appears to be focused on women only. Time will tell.

Avinash : Alright. Thank you buddy. I'm off to my friend's house. I'll discuss the strategy with her and her parents.

Me: Good Luck, keep me updated.


Sunday, 27 May 2012


(A soldier's funeral song. Dedicated to the brave hearts who not only choose this path of valor & sacrifice but also lay down their lives selflessly for the sake of their nation & fellow men.)

He braved the fear of not returning ever
He shed his qualms of living in danger
He went ahead for the pride of his soul
He marched to his country's call

He watched in guard while we slept,
He starved in wars while we ate
An honor he thought of that task
To lay aside comforts for his duty's ask 

In the lap of heat & fire 
He fought by his men sans tire
Bullets in, bullets out
Grenades drowning every shout

Shredded skins of hands he'd shaken
Shut eyes that'd playfully teasen'
Still figures in traps of smoke
A phantom he'd become in one stroke

He moved ahead, in time of retreat
He refused to lay low on cowardice feet
Oblivious to his mates' urges
Pleading to return to secret lurches

How he ran into the enemy citadel 
A message - his country will not fail
He left behind all who cared
He'd sworn a thing & that he dared

Today we gather in his memory
We've nothing but to sing his glory
Those salutes of guns will matter
They will thunder in his greatness for sure

But what'll go on for ages
Written in history's golden pages
Is the act so uncommon
Living a life from his loved ones forlorn

The story of his life
Shines in the tears of his wife
The patriot's reign,
Courses in his toddler's vein

I walk up to the lady
To give her a Panda teddy
A gift her man had bought
To welcome their child he'd sought

Then I hand over his letter
Unsent & meant for her
She stares at it for a while
Suddenly she sees the smile

Their child is giggling
In her mother's arms he's jiggling
Like a message he's conveying
For the departed he's acting

There lies my friend, my savior
A man who was born to be a warrior
While we mourn a patriot's departure,
Let's hail the victory of a soldier

Wednesday, 23 May 2012

The Conversation - IV

(On delays in justice, revelations about judicial process & more on free speech, role of media & prejudice...      +    A must watch Video)

Me: (Munching) Mmmmm....What did I tell you ? ! These noodles are the best in this part of the world. And just see how gorgeous the gravy is..... delicious !! ..What are you thinking ?

Avinash: You've put forth elaborate explanations about the law being neither biased nor being slack. But I wonder how you are gonna justify the problem of abysmal speed of disposal of cases by Courts.

Me: As I told you earlier, nothing can justify the malady of delay in disposal of court cases. It's sheer misery to watch years pass by while one awaits justice. But I'll say this much. Before we pass our judgment on the inefficiency of courts for not being able to expeditiously dispose of the cases, I beseech you to consider certain statistics.

Avinash: I'm all ears.

Me: Have you heard of something called the Judge - Population ratio. It denotes the number of judges per million (ten lakh) people in a country. In the USA (I'm giving the example of USA because it has an enviable judicial system) they have ten times more judges per million people, than in India. The Indian Law Commission in its 120th Report recommended that the strength of judges per million population should be increased from 10.5 to 50 judges. The present judge strength in India is 14 judges per million (ten lakh) population (approx.). From these figures it is not difficult to understand the cause behind the present alarming rate of pendency of cases. With regard to subordinate judiciary, the Supreme Court had, in its judgement of 21st March, 2002, in All India Judges’ Association & Ors Vs. Union of India & Ors., also directed that  increase in the Judge strength from 10.5 per 10 lakh people to 50 judges per 10 lakh people should be effected and implemented within a period of five years in a phased manner to be determined and directed by the Union Ministry of Law. You'll be surprised to know that less than 1 % is allocated to the judiciary in the State and Central Budget every year. In the Ninth Five year plan the Govt. set aside Rs 385 Crore for the judiciary and that works out to about 0.078 % of total expenditure plan. In the Tenth Five Year Plan, the allocation though increased to Rs 700 Crore, it still works out to a shocking 0.071 % of total plan expenditure. Its a complete mockery that the very institution which is often quoted as the last hope for the exploited and the injured, is so neglected. One of my friends recently pointed out to me his utter wonder, after becoming aware of these figures, at as to how the judiciary functions at all.

The number of our judges needs to be urgently increased by considerable fold. No nation which aspires to have a sound and corruption free governance can claim to achieve it without strengthening its judicial system first.

Avinash: Are you telling me that Judges have no role in causing the delay ?

Me: Do you know that judges are provided yardsticks / outturn criteria for doing their judicial work, by their respective superior Courts. The Hon'ble High Courts, all over the country, in whom vests the power of superintendence over the subordinate Courts under Article 235 of our Constitution, keenly supervise the achievement of prescribed yardsticks by the subordinate Courts. If you go around checking, you'll find that in 99 % of cases, these yardsticks are achieved. The statistics are regularly forwarded to the respective High Courts and through them to the Supreme Court for review of performances of the concerned judges. Please be assured that Judges of our Courts are neither lax nor negligent towards the issue of judicial delay.

I also do not think that I've to remind you, only of course if you are conversant with recent developments, that the Hon'ble Supreme Court has in consultation with the Chief Justices of various High Courts, initiated mega drives for disposal of long pending cases by Courts of our country as well as cases involving petty offences which consume disproportionate time and infrastructure of the judiciary. If you check the statistics, you'll agree that these drives are yielding promising results. So the next time you think that judges in any manner also contribute to the delay in adjudication, think again.

Avinash: I do not deny what you just said, but what you've got to say about the popular perception that the highy & the mighty never get punished in Courts while the poor and ill afforded suffer.

Me: Recently one of my friends, raised this vital issue during a discussion regarding media activism and its effect on Court cases. She made this thought provoking argument that though she's not entirely for an activist media, she nevertheless feels that many a times a public outrage through media does ensure that justice is done. She quoted the examples of the Manu Sharma case and the recent matter involving N.D. Tiwari. She probed whether the outcomes which occurred in these cases would have been possible without a media outcry be it over Jessical Lal's case or the N.D. Tiwari case.

Avinash: Don't you think she's right ?

Me: Partially. As far as Manu Sharma's case is concerned, the judiciary had no motive to willfully disregard Jessica Lal's cause., It had nothing to gain by ignoring it. While the ordinary practice is that Courts do not look into matters until those are brought before it, still the Delhi High Court took suo motu cognizance of Jessica Lal's case after Manu Sharma was acquitted by the Sessions Court. Nobody could have questioned the High Court if it would have decided not to do so, but still it did. I agree that media did play an important role in it, but one good act does not give the license to commit two sins. As far as the N.D. Tiwari case is concerned, let me tell you, it does not require so much hue and cry by the media to influence a Court. Hue and cry cannot induce a Judge to take up or not take up somebody's case. There's a very simple reason for it. Unlike MLAs / MPs, IAS officers etc, a Judge has nothing to gain by garnering mass support. For instance an MP can do a particular act in such circumstances since he'd be worried for votes, but a Judge isn't. His career is not determined by taking up popular causes. So you see, if the media was so concerned, then instead of raising commotion if one good journalist would have asked the lawyer of the other side to file a petition praying for DNA test of Tiwari, the Judge would have anyhow allowed it, on merits of his arguments in Court.

Avinash: I do agree with the reality that judges have no interest in becoming popular, hence they have nothing to be influenced about for taking up or not taking up a cause. But can you completely rule out corruption in the judiciary ? The general cynicism against judiciary is reinforced when it is often seen that all big guns are let off scott free ; that is why public approaches the media & also takes delight when big names are dragged in the mud--this could certainly lead to innocent names being tarnished,but the 'aam aadmi' too suffers on countless fronts. Its loathsome to see a criminal going unpunished because of his power,prestige, or connections. Apart from this, it is incumbent upon the judge to not be swayed by any outside interference.

Me: have perfectly identified the symptoms but erred in diagnosing the disease.

Avinash : As in..?

Me: As in, when you say that a judge is not supposed to be influenced by external opinions, you're  absolutely correct. But nobody says that due to media sensationalism or media trials, the Judges get influenced. There's no question of a Judge being influenced by populist opinions for the simple reason, as I said earlier. that he'd achieve nothing by saving the popular or punishing the despised. Rather, his verdict, if not based on sound legal principles will surely get overruled in higher Courts.

Avinash: Then what is the harm of media activism ?

Me: I'll tell you.
An accused, if prejudged to be guilty by the members of the society at large due to media outcry or media caused sensationalism, is never going to have a peaceful life. He'll get punished much before he's proved to be guilty. Then all his efforts to establish his innocence would have become meaningless. Some may argue that he's guilty that's why people are against him even before Court' verdict.
Let us for once, think again. Can we really claim to know the truth, when all we see is a virally multiplied antagonism against a particular person on the basis of media reports. Aren't we risking the truth when we blindly take a side, on the basis of unaccounted media reports, when we claim ourselves to be rational and fair. Do we really know the truth sitting on our beds and couch ?
As a result of such mindless campaign against an accused, it may so happen, that even if he's declared innocent by Court, people will think that he got away with his crime because he's rich and has connections, or because of lack of evidence. But the stigma will remain forever. There're many such examples. Just imagine, if tomorrow, the Talwars, the parents of Aarushi are genuinely adjudged as innocent and all Courts, up to the Supreme Court, find them not guilty, would we be able to compensate for all what we have inflicted on them, thanks to the mindless broadcasting choices of the media, during the recent past, or for what is yet to be inflicted on them.

(Just note down this link ( ) and watch this video on Youtube. Its a bit old. Though I myself don't subscribe to a few things spoken here and there in the video, by and large this video will clarify further what I've tried to say. And the man speaking is an idol for many. Now there's one thing you must remember while watching the video. I'm not showing it to you because I support or oppose the outcome of any legal case or the conduct of any particular person mentioned in the video, but because I want to you to be informed about certain fundamental principles relating to the larger issues about which we just discussed.)

Another thing. Just imagine, as someone rightly pointed out,  the plight of a man who believes in or has evidence about the innocence of an accused. It becomes a Herculean challenge for him to fight the unwarranted prejudice hanging in the air against that accused and still go and give evidence in his favour., when the whole world thinks him to be guilty. There's every likelihood that the witness may himself face aspersions or serious criticism. This in turn, may deter him from going and giving evidence in the first place. And the net result will be that the truth may never come out. Such are the dangers of prejudice. That's why I'm saying that all this is avoidable mess, only if we do not indulge in & stop supporting unnecessary media hype about any given case which is yet to see its day in the Court or which is already in the Court files.

Avinash: You've a point.

Me: Sometimes it is said that unless there's outcry, the Courts will not take the matter seriously. There cannot be a more baseless statement than this. Every day Courts hear heart wrenching murder cases, molestation cases, rape cases, cheating cases, cases of extortion and torture.  Every case is important and vital in its own way for the Courts. Let them deal with those for they are the best suited to do so. What in my humble opinion would be more appropriate, instead of raising an outcry, would be to gather all kinds of legal support and hire the services of  good lawyers who'll do all that we think is necessary, in the Courts, for obtaining justice for the victim. After all, its the Court not the media or anybody else, that'll hand out a final verdict.

Having said this, the outcry may do good in one front, that is , it may caution the the various agents of the Govt., starting from a Constable to a Home Minister, that no callousness shall be tolerated by the public, so far as holding an effective and expeditious inquiry or investigation into the concerned problem is concerned. This will obviously lead to a fair and speedy investigation and collection of evidence to be presented before the Courts for a proper judicial scrutiny of the matter.

Avinash: What about the erosion of faith in judiciary when criminals go scott free due to their power, prestige or connection ?

Me: You're absolutely correct when you say that it's wrong when criminals go unpunished. But what's the real reason behind it ? Its not that Courts love letting go of criminals. Hence its necessary that you must understand certain nuances of the legal process. Even though you may know this, I'd still like to briefly re - apprise you of those facts in general.

Avinash: Go on.

Me: The law is set into motion when an FIR / complaint is registered by the Police.

The Police then goes to do investigation. During investigation it collects proofs, statements of witnesses etc that indicate the commission of the alleged offence.

Then on the combined basis of the complaint and the investigation it arraigns the suspects as accused persons and forwards them to the nearest Court of law, or

The Police then submits a final report ( in case it doesn't get any clue or evidence of the crime ) or in other cases submits charge sheet alongwith other documents.

If final report is submitted, the complainant can protest against it and pray to the Court to still take cognizance of the offences despite the Police's final report. If the Court doesn't then the case is closed, but if it does listen to the complainant then it conducts its own inquiry and proceeds likewise.

When the accused is brought before the Couirt or he himself appears before it, the allegations are read over and explained to the him and he's asked whether he admits his guilt or not.

If he does then the Judge decides his punishment, but if he doesn't then trial commences.

The Court then summons the witnesses named by the Poilice who had stated during the investigations about to the guilt of the accused.

 Now depending upon the dimensions of a particular case, various categories of documents, witnesses, expert witnesses etc. are summoned by the Court for ultimate analysis of the truth.

After this process is over, the accused is given an opportunity to adduce evidence in his favour to rebut the prosecution evidence. Ultimately after hearing the final arguments the judge pronounces his judgment.

Now you think for yourself, as to how many different persons have a role to play in deciding the fate of a case. Police, witnesses, scientific experts, documents etc. Unless each of them is pristine and honest in his task, truth is bound to remain buried. Therefore the next time when you think that a Court has set free a guilty, think again, what actually set him free.


Saturday, 19 May 2012

The Conversation - III

(On free speech, media trial & prejudice )

Avinash:  What you have to say about the whole spot fixing sting operation, SRK scuffle episode in the Wankhede Stadium and the Pomersbach case ?

Me: Well, I hope each will get what he deserves.

Avinash: Which is ?

Me:  How the hell do I know ?

Avinash: Have you been asleep this whole week or what ? Don't you watch prime time news or the news at all ?

Me: Yeah. I do. Why ?

Avinash: You speak as if you're ignorant about the whole affair?

Me : What do you mean ?

Avinash : Don't you know that the players of the IPL teams were clearly exposed fixing their performances in lieu of money. The sting operation exposed them like bacteria under a microscope. Its clear that they are guilty.

Me: How much jail time they are gonna serve ?

Avinash: What ?

Me: You said they are clearly guilty. So i want to know about the penalty or punishment  that has been inflicted on them.

Avinash: Hey, now don't get smarty with me, alright? You know there will be an inquiry and / or a court process before they are ultimately penalized.

Me: Really ? ! I thought they are going to the gallows already, because people like you have declared them guilty.

Avinash: Its not just me, its most of the country. You should' ve seen the debates on news channel regarding this issue. The facts are crystal clear. The alleged players are involved in spot fixing.

Me: Then why the delay in their punishment. Hang 'em.

Avinash: Hmm..don't you darn well know that there's a process of law before which nothing can be done with these people.

Me: Then why the heck are you screaming from  roof tops about their guilt, when you very well know that their innocence or guilt is to be determined only by the procedure established by law i.e. through an enquiry or trial.

Avinash: Come' on now. We live in a free world. India is the largest democracy and I don't need to remind you that under the Constitution of our free nation, I'm entitled to the freedom of speech and expression..

Me: True, but can that freedom be exercised to an undefined extent.

Avinash: My friend, why are being so darn skeptical. I'm just saying that from what has been played over news channels it is clearly evident that the players have entered into illegal spot fixing concerning their performance in IPL matches.

Me: That's precisely why I'm so skeptical. You cannot say that.

Avinash: Are you kidding me ? What is this ? Taliban ?

Me: It isn't. That's exactly why you can't say stuffs like that. Please give me a patient hearing and if you are the reasonable person I know you to be, then you'll surely understand what I'm trying to say. Ok ?

Avinash: (sighs). Yeah..Yeah, Go on.

Me: There's nothing more sanctimonious in any democracy than the freedom of speech and expression. But we must understand that like any other freedom, it too is not absolute and it is subject to reasonable regulations and restrictions. When liberty is accorded to subjects of a nation, it is never purported while so according, that the said liberty will be wildly asserted in disregard to other conflicting freedoms. I'll elucidate this by saying that if each pedestrian begins to claim that "since I've the liberty to walk, nothing can stop me", there will be an endless traffic jam. Similarly while exercising our right to freedom of expression and speech, we have to be aware, only ofcourse, if we are claiming to be law abiding citizens, whether such exercise does in any manner sabotage sacred principles of governance and rule of law. The news channels appear to be mostly forgetful of this caution. There is this non stop rant about matters which are gravely connected to under trial issues. It is high time to apprise everyone about the dangers of prejudice and an unwarranted barrage of speculations and opinions about a particular issue, especially those which are sub judice.... 

Avinash: Wait wait. What is sub judice issue ?

Me: sub judice issue is one which is currently in the process of adjudication in a Court of law, or which is the subject matter of a formally initiated inquiry.

Avinash: Ok, so you mean to say that it isn't advisable to discuss the merits of a court case outside the Court, especially in the media right ?

Me: I've very closely followed a lot of sensational issues that have received raving attention of the society at large. Ranging from the incident of the hit & run cases of celebrities to the recent commotion about Luke Pomersbach's alleged misbehavior with a lady at a Delhi Hotel during a post IPL match party or whatever. I dare not exclude, in retrospect, the sensational case of Manu Sharma who now lies incarcerated in prison for having murdered Jessica Lal or that of the Talwars in the Aarushi murder case. In all these instances, the screaming common factor is the overplayed role of the media in deliberating, discussing and garnering speculative opinion regarding the facts of those cases.

I understand that the media is duty bound to conduct a fair investigation into issues concerning national & social relevance. I'm also supportive of reasonably fair debate on a background issue (say for example in the Pomersbach's case the rising problem of female insecurity in public places or the high handedness of the so called rich & mighty) but how on the blessed earth can you have a debate purporting to unearth the truth behind the allegations that the suspect / the accused is facing. That's the grund function of the Courts.

Before I say anything else, let me first assure you that I'm neither in any way supporting Manu Sharma nor am I saying that either Pomersbach or Talwars are innocent. In fact, you can now talk as much as you want to about the dastardly act of Manu Sharma and curse him as much as you want, because it has been proved beyond all reasonable doubts that he indeed murdered Jessical Lal. But in the case of Pomersbach or Talwars, or of any other person who is due to have his day in Court I sincerely beseech you to guard your tongue against careless uttering. You have no idea about the dangers of prejudice to an accused. That's why, I'm infuriated at the mindless display of sensational oratory by media personnel over issues concerning the innocence or the guilt of the Talwars or Pomersbach and many others.

I agree that sometimes the nature of certain cases are such that there is overwhelming reaction from all sections of the society. And in such cases, more often than not, the popular opinion is against the person arraigned as the suspect or the accused. Here the media cannot sensationalize the issue to bank upon the growing public perception in an ambition to achieve its interests. Rather it is expected that the media will conduct a balanced debate on the topic, carefully guarding against, frequent conjecturing about the fate of the matter.

Avinash : My dear friend, let me remind you of the words of the great Pandit Nehru. He said

“I would rather have a completely free press with all the dangers involved in the wrong use of that freedom than a suppressed or regulated press.” 

Me: True. I'm aware of that philosophy too and I support the freedom of press. But unfortunately Pandit Nehru did not foresee the danger involved in the ‘administration of justice’ which is the very essence of the natural justice and the rule of law or rather he would not have expected the press to get involved into something which is beyond its limit and ethics too. I read a beautiful article on this topic the other day where the author has written on how the media has now reincarnated itself into a ‘public court’ (Janta Adalat), and thereby latently interfering with court proceedings. It completely overlooks the vital gap between an accused and a convict keeping at stake the golden principles of ‘presumption of innocence until proven guilty’ and ‘guilt beyond reasonable doubt’. Now, what we observe is media trial where the media itself does a separate investigation, builds a public opinion against the accused even before the court takes cognizance of the case. By this way, it prejudices the public and sometimes even judges and as a result the accused, that should be assumed innocent, is presumed as a criminal leaving all his rights and liberty unredressed. If excessive publicity in the media about a suspect or an accused before trial prejudices a fair trial or or results in characterizing him as a person who had indeed committed the crime, it amounts to undue interference with the “administration of justice”, calling for proceedings for contempt of court against the media. Unfortunately, rules designed to regulate journalistic conduct are inadequate to prevent the encroachment of civil rights. What is even more outrageous is that sometimes news channels invite the lawyers who represent these accused persons and grill them on questions pertaining to their professional ethics as to how could they take up the case of such a  person, who according to the media is already guilty. They even induce an analysis of the evidence available against that accused, an act which is grossly unwarranted from the media.
Avinash : Ok

Me: Let us also not forget that the right to a fair trial is also an inviolable right granted to every accused under our Constitution. This right is bound to be deeply impaired when the media indulges itself in inducing public opinion about his guilt when his trial is either yet to commence or is already underway.

Avinash : Alright, alright.......What is your take on the Pomersbach episode ?

Me: Look. Pomersbach has already been produced in Court concerning allegations of trespassing, assault and molestation. The Court will decide what's the truth in these allegations basing on the evidence produced before it. Just wait and the truth will be out before you. But in the meantime we can pay allegiance to our constitutional ethics by refraining ourselves from entering into discussions concerning his guilt or innocence.

Do you have a pen & piece of paper ?

Avinash: Yeah, why ?

Me: Just note down this link ( ) and watch this video on Youtube. Its a bit old. Though I myself don't subscribe to a few things spoken here and there in the video, by and large this video will clarify further what I've tried to say. And the man speaking is an idol for many. Now there's one thing you must remember while watching the video. I'm not showing it to you because I support or oppose the outcome of any legal case or the conduct of any particular person mentioned in the video, but because I want to you to be informed about certain fundamental principles relating to the larger issues about which we just discussed.


Thursday, 17 May 2012


A thing or two I did in jest
After years I can't lay 'em to rest
They chase me and haunt too
Beneath the endless blue

My mind flies back to memories
Of the careless moments of histories
Things of value never mattered
When they ought to have deterred

Frivolous scars and tears aplenty
I doled out till my heart was empty
Soon I found myself weary
Of the camouflaged misery

The rush receded into a void
Of all the frenzy I became devoid
Then I went somewhere else
And the tears too drained to another place

After centuries I found time
To regret over my guilt sublime
It often pays visit
A flame of hurt is lit

And when I hear me breathing
I become aware of all the hurting
I caused everywhere
Like a soul bereft of care

All the pleadings and pleasings
I reminisce each & everything
So many things I wish I could change
A belated realization is so strange

All the tears I drew
All the sighs I knew
All the pain I hurled
All the hopes I crushed

I wait for my chance to redeem
I expect severance from my whim
Though I ask for forgiveness & mercy
I know that salvation don't come easy


Wednesday, 16 May 2012

The Accused

Litigants were mumbling indistinctively around their lawyers and Sri K.S. Mishra, the District & Sessions Judge of Maldakhet District Court had not assumed his chair for the day yet. Varying temperatures across the Court hall had donned it with the flavours of the local fair ground. Litigants from diverse nook and cranny of the district were busy with their respective attorneys who invariably doled out optimistic assurances about the fate of their respective causes in the Court. Every lawyer told his client that he will win the case in a jiffy. The Court clock struck eleven and the disciplined judge Mishra emerged out of his chamber & rose up to the Bench. The orderly Hari simultaneously signaled everyone to stand up. Novice litigants, ignorant about the order of business in a Court of law immediately attempted to steal a word or two with their advocates who admonishingly signaled at them to keep shut. The judge made a quick ceremony of shutting his eyes and praying for divine guidance as he was about to deal with matters concerning liberty of men, their property, matrimony and numerous crucial facets that comprised their lives. He opened his saint like eyes and resumed his calm composure. He consumed a few moments to thoroughly survey his Court room for any anomalies, show of indiscipline or lack of courtesy. Luckily there were none. He stretched his left hand towards his clerk signalling him to start calling the matters in the order of their listing.

In the sleepy district of Maldakhet nothing sensational had ever occurred, at least not during Sri Mishra's tenure. But today was different. Judge Mishra was privy to the overwhelming sensations surrounding the case of State Vs. Sampat. He was staunchly aware of the viral proportions that his pronouncement on the said matter could assume, if he failed to handle it with subtlety. Sampat Kumar, the son of the once wealthy Zamindar Amrit babu, was facing trial for charges of stabbing his impoverished debtor Sathya to death. The weapon of offence had been recovered from the spot with Sampat's finger prints all over it. The Public Prosecutor wore a confident grin as he swore to put the accused away in jail for his life and send a reverberating message to the men of Madelkhat that he will hunt them down for their lawlessness. The outcome of this case had its own ramifications in the medieval minded community of Madelkhat. Sampat was paraded handcuffed into the Courtroom cordoned by uniformed men on both sides. For the entire distance from the Police van to the dock meant for accused persons inside the court, he did not for a moment raise his head. It hung down like a lifeless branch waiting to be blown away by a speeding gust. The bustle prevalent in the court receded into pin drop silence as everyone looked at Sampat, the murderer, with unconcealed awe. They scanned his ragged frame as if he were an alien captive among humans, probably wondering as to what had turned this once peace loving man into a demon. The judge cleared his throat and asked Sampat whether he would like to enter a plea of guilt. 'Not guilty', Sampat's lawyer answered for him. Thus began his trial.

The prosecution case was entirely circumstantial as there was no eye witness who had seen the accused committing the alleged crime. But the suave prosecutor moved ahead one step at a time. He established through the undisputed evidence of Amrit babu, Sampat's father, and other witnesses that Sathya had taken a hand loan of one lakh rupees from the former. He also succeeded in proving that on a few occasions, Amrit babu had publicly threatened Sathya with dire consequences if he did not repay the debt along with the due interest money. He elicited from the witnesses that the passage of about more than a year since the date fixed for final repayment had made the accused and his father impatient. "Your Honour, I have established a reasonably strong motive on the part of the the accused for doing away with the life of the deceased. Now if I have the permission of Your Honour, I'd examine the forensic expert." the prosecutor requested. "Granted" exclaimed the judge.

The State Forensic Laboratory's most senior examiner was summoned to the witness dock.

"What is your profession and what qualifies you to give scientific evidence in this Court?" inquired the prosecutor.

"Well, I'm employed as a senior forensic analyst at the State Forensic Laboratory and I have specialized in weapons as well as finger impression analysis." replied the witness.

"So, in your expert opinion, what caused the fatal wound of the deceased ? " continued the prosecutor.

The witness held the ten inch long kitchen knife, seized by the Police, for everyone to see and assertively declared "The wound on the body of the deceased has been caused by a sharp cutting instrument like the one I'm holding."

'And Your Honour is already aware that this knife was recovered from the spot with the blood of the deceased on it. So its well established that this particular knife has been used to murder the deceased.' the prosecutor quickly added.

"Have you personally examined the knife for any finger prints ?" asked the prosecutor.

"Yes, I have. I have thoroughly examined the fingerprints available on the knife and the fingerprints of the suspect.


"They are a complete match." exclaimed the witness. No sooner than the witness finished his last sentence, the courtroom broke into hisses and murmurs. The judge rapped his gavel ordering silence. The prosecutor strolled back confidently to his seat.

"Will the learned defence counsel cross examine the witness ? the judge asked Mahesh babu, the defence counsel.

"Yes". He cracked his knuckles as he gingerly walked up to the witness. He shot a affable smile at him and began cordially

"Mr. Patnaik.......Right ?"


"Could you tell this Court Mr. Patnaik, as to whether there would be a difference between a self inflicted wound and a wound caused on a person's body by another man."

"Yes there would be."

"When you say that the wound which led to the death of the deceased was caused by the knife seized by the Police from the spot, is it possible that the said wound could have been self inflicted, by using the same knife?"

Patnaik began fidgeting and felt a trickle of sweat finding its way from his brow to his chin. He blurted "Yes it is possible."
"Do you, in your expert opinion, completely rule out the possibility of the wound having been self inflicted by the deceased" the defence counsel probed sharply.

The prosecutor shot up to his feet and began yelling "irrelevant, irrelevant". The judge calmly ordered him to sit down and asked the advocate to continue with his cross. "Ok Mr. Patnaik we'll leave it at that. Do you want water ?', he asked with unmistakable courtesy. 'No' came the witness's reply.
"Alright Mr. Patnaik, just one more question before you leave." Mahesh babu assured the witness. The words " last" & "leave" brought an ostensible expression of relief to the witness's facial contours.

"Will you kindly tell the Court as to how many set of finger prints, you identified on the knife ?" asked Mahesh babu. The prosecutor lost his temper and made no effort to conceal it this time. He banged the table infront of him and demanded that the defence lawyer should be prohibited to ask such baseless questions when the witness has already answered that he found the fingerprints of the accused on the knife.

Mahesh babu slowly truned around and gently stated "Your Honour my learned friend is forgetting that the witness has said that he found the fingerprints of the accused. Never for once, did he say that those were the only prints existent on the knife. So you see, I'm just trying to put my curiosity to rest. All the witness has to say is that whether he found only the fingerprints of the accused and the matter will end there." He turned back to the witness and repeated his question. But silence was all he got, until the mercurial judge Mishra lost his cool and roared "What happened, cat got your tongue ? Why don't you answer the man's simple question ?

"No" came the stunning reply of the witness. He elucidated that he had detected another set of prints and when he ran a check on 'em, he found that those belonged to the deceased.

'Nothing further.' said Mahesh, Sampat's counsel and started walking back to resume his seat. He gave a reassuring glance at Sampat, who seemed to be lost in distant thoughts while he dug his eyes into the ground beneath his feet. The prosecutor got up, regained his composure and announced 'The State now calls Smt. Malati Naik as its next witness."

After she was administered oath by the clerk, the prosecutor queried

'How are you related to the deceased ?

'I'm not. I'm only his neighbour.' she replied.
'I see ! ! So how far do you live from Sampat's house ?'

'At about a distance of ten to fifteen feet.'

'Tell us what happened that night.'

'I was going to meet Sathya's wife to borrow some milk for my daughter, when I saw Sampat walking out of his house with bloody hands. I saw him pull out a bottle of country made whiskey and gulp down its fiery contents. He then walked away like a zombie and blended into the neighboring darkness. The Police found him an hour later, senseless under a Bakul tree near the Kashuki river.'

'Nothing further Your Honour.' exclaimed the prosecutor and went back to his chair.

"Have you ever interacted with the accused ?' Mahesh babu asked Ms Naik, seizing his turn for cross examination.

'Of course I have, he's my co villager'

'Can you tell us from your memory whether the behaviour which you just ascribed to him on the spot of occurence, is his usual one.'

'No. It isn't' she gave an instant reply. 'He's quite well behaved and sober. I'd never seen him before in such a state like the one he was in, that night'

'What state?' Mahesh babu questioned sincerely.

"Well. That night when I saw him walking out of the deceased's house, I greeted him. But he didn't respond. I called his name repeatedly, still he walked dead deaf. When finally he turned belatedly, I caught his moist eyes. They were red and totally immersed in tears." she concluded. As the defence counsel had nothing else to ask her, she was excused by the judge.

The prosecutor then called the final witness to testify against the accused. He announced the name of Jharana Devi. Jharana Devi was the widow of the victim. For the first time since he had walked into the courtroom, Sampat slowly raised his head and fixed his eyes at the entrance. His eyes exhibited signs of life in them at the mention of Jharana Devi's name. One could say from his look that if at all he had any hope from anybody, it wasn't the judge or his own advocate but from his victim's wife. The judge noticed her anxiety and assured her of the law's protection in the event of her speaking truth and nothing but the truth. The prosecutor began by offering his sincere condolences to her for her profound loss. He requested her to gather her composure reminding her of the great importance of the words she intends to speak there.

'Tell us what happened ..take as much time as you need, but tell us in detail. Go on.'

Jharana Devi looked in Sampat's direction . Their eyes met for a brief moment and then left each other.

'My husband had borrowed one lakh rupees from Sampat babu's father, for paying my medical expenses when I was diagnosed with a tumor in my stomach and an urgent operation had become the need of the hour. However our only source of income, our fields, betrayed us season after season. He couldn't repay the loan and often Sampat babu came to our door for collecting the interest money.'

'So they also charged interest, huh ?' the prosecutor blurted, giving off a disgusted glance at the judge almost invoking similar reaction from him. 'Did you pay the interest ?' he asked.


'And the principal...any part of it ?'


'Your Sampat Babu must have got furious, didn't he ? '

There was a brief silence whereafter Jharana Devi began again 'Not at all. On the contrary he never even spoke a word. He would come, stand by the door and when one of us opened it, he would wait for a moment to gather that no payment was forthcoming and then he would simply walk away. After several visits, he one day assured me that he'll pay us one lakh rupees which we shall pay to his father. He also told me that his loan shall be interest free, so that it would easier for us to repay the money. He wanted to talk to my husband about it but since he wasn't there at that time, he asked me not to speak about it to my husband, as he first needed to ensure that he can arrange for one lakh rupees to give us' . Her testimony had induced nodding of several heads in the audience in agreement as they all knew the Samaritan ways of the accused.

The prosecutor unable to gather the intention of his witness, asked her, in an unsure fashion, to skip all this and narrate the incident which took place on the fateful day.
She looked up at the judge and narrated 'Sahib, that afternoon Amrit babu came to our house with a couple of angry looking men and threatened my husband that if he did not pay the money by nightfall then his son would come and finish our entire family. My husband began trembling after they left. ...Sahib, I pleaded a lot with him that Sampat babu is a nice man and he shall do us no harm. But his fear got the better of him. In the evening he came home, drunk out of his senses, swearing in all kind of filthy utterings. When I returned from the market, I found him sitting on our cot, holding our kitchen knife menacingly. Sensing his intentions, I attempted to dissuade him to give up the knife, but he got so annoyed that he landed a sudden blow on my face knocking me off a couple of feet. I heard him murmuring "I'll fix the father son duo once and for all."

She paused, gesturing for a glass of water which was immediately handed over to her by Sampat's counsel, and then she continued;

'I heard a familiar knock on our door and before I could stand up on my feet, I saw my husband rush like a madman to the door. As soon as he saw Sampat babu, he brandished the dagger aiming at his heart. Then like flashes of a nightmare one thing led to another, Sampat babu desperately escaping my husband's attacks one after another. Then all of a sudden, my husband swayed his body uncontrollably and with a loud thud landed on the ground. His body shuddered and his scream got caught somewhere in his throat and never came out. Within moments he became still. Sampat babu rushed near him and turned his body around and made him face up. ...... The knife had slit his heart Sahib .... ' She sobbed incessantly in the silence of the court room. None said a word.

'Sampat babu carefully withdrew the knife from his chest. But my husband had already breathed his last.' She again broke into uncontrolable sobbing, but managed to say, what according to her was the most important thing to say. 'Sampat babu was drunk too. I could sense that. He rushed out of our house to call for help. But not before giving me a wad of thousand rupee notes which I later counted to one lakh rupees. He never returned with help though. When he handed me the money he said "My father will still not leave you. Give this to him".
Even the walls of the court hall appeared as if they had been caught by utter shock at the willingness of a murdered man's wife to salvage her husband's alleged slayer. Slanderous speculations about her chastity were imminent. Evading eye contact with most of the audience who glanced at her sarcastically, she testified the truth and nothing but the truth. The courtroom remained blanketed by thick silence. Somebody coughed and the judge excused Jharana Devi from the witness box, but not before a dumbfounded prosecutor had expressed his decision not to declare her hostile or cross examine her. The judge pronounced Sampat to be Not Guilty and set him at liberty, who did not seemed to be overjoyed about it, the way his family members and peers were. He wanted to meet and thank Jharana Devi but she was nowhere to be found. The local daily published a front page report next day on the case, its dramatic dimensions and the verdict in favour of the accused.


( "The Accused" is a work of fiction and any resemblance to any person (alive or dead), place or incident is coincidental.)

Tuesday, 8 May 2012

The Conversation - II

(On Law & Justice ....)

Avinash : You know, at times I really think that the law is aptly called blind. Why else is there so much injustice all around, despite libraries full of Codes, Laws, Regulations and Rules in our country. The discontentment has climbed upto an extent where people call law an a** . Ever thought why is it so ?

Me: I cannot tell you any particular reason for that..Well, le'me see; I think it’s mostly because of the popular perception that law serves the interests of only the powerful and the privileged, while the un privileged suffer despite all the protection purported to be guaranteed to them by it. The anger is fixated on the high and the mighty who appear to be immune to the rigours of law. It's also because of the prevalent understanding that despite so many so called stringent laws, there are all kinds of crimes and wrongs taking lace in our community. I may further add here that besides the law itself, a part of the anger is directed at lawyers and Courts. The former are considered to be slick manipulators of the law and the latter to be incompetent and inept as hundreds of (presumed) guilty escape the clutches of law under the very eyes of our Courts.

Avinash: Is that correct ......factually ?

Me: Look, nothing is absolutely perfect. There's always gonna be a certain degree of deficit between the aim of any law and the achievement of that aim. What's important is that there must be a perpetual endeavor towards attaining perfection.

Avinash : Sorry brother, you lost me.

Me. I'll explain.

Avinash : Yeah, please.

Me: You ask any diligent student of law, as to whether a particular issue, if at all addressed by any law has been reasonably dealt with, by it or not. He'll answer it in affirmative. But if you then ask him whether it holistically resolves it, he may not always answer in affirmative. But that may be because the full extent of the issue in question may not have been fathomed at the time of framing the relevant law. It is not humanely possible to foresee every likelihood, however remote that might be, at the time of drafting a legislation concerning that issue or problem.

Avinash: Lost..Lost..Lost

Me: Ok ok...wait...Let’s, for instance, take the example of the Indian law against rape. The Indian Penal Code (IPC) defines what amounts to rape. Let me quote the legal definition of the offence for you and then it'll be better suited to explain my point. Section 375 of IPC defines that a man is said to commit “rape” who, has sexual intercourse with a woman under circumstances falling under any one or more of the six numerated descriptions which are – firstly against her will or secondly without her consent or thirdly with her consent, when her consent has been obtained by putting her or any person in whom she is interested, in fear of death or of hurt, fourthly, with her consent, when the man knows that he is not her husband, and that her consent is given because she believed that he is another man to whom she is married ,fifthly, with her consent, when, at the time of giving such consent, by reason of unsoundness of mind or intoxication, she is unable to understand the nature and consequences of that to which she gives consent and sixthly with or without her consent, when she is under sixteen years of age. There is one exception which says that sexual intercourse by a man with his own wife, the wife not being under fifteen years of age, is not rape.

The punishment for rapists is a minimum of seven years of incarceration and the Court may also extend it to a term of imprisonment for the whole of his life besides sentencing him to pay fine.

Avinash: OK.

Me: Now having heard about the law, I'm sure you would agree that if this particular section was drafted around the year 1860, various factors were taken into account to make it a fully armed provision to combat the evil of rape.

Avinash: You can say that.

Me: Well I'm not saying that. This provision of law has stood the test of time for over a century now. There is barely anything which it does not cover, under its six clauses.

Avinash: Yeah . It seems so

Me: Come 'on now Mr. cynic, stop critiquing for the sake of it, if you really think the law is insufficient, tell me what does Section 375 lack in ?!!

Avinash : I'm no lawyer but I think if the law is so full fledged, then the statistics of rape in this country ought to be something else.

Me: My friend, the world does not begin and end with drafting of a law. There are allied issues surrounding its efficacy and implementation, and of course the legal process of a trial where the truth is supposed to be revealed and the guilty be punished..Ok ? So I was saying that a century ago the law under Section 375 was enacted to punish rapists and it seemed fine uptil 1983, when the burning phenomenon of custodial rape hounded our society. Men in charge of important institutions were found to take advantage of their position and commit rape on unsuspecting females who had surrendered themselves into their custody for entirely noble purposes. So the law caught up with this evil by virtue of enactment of a series of four sections (Sections 376 A to 376 D) besides the revamping of Section 376 itself, in as much as it brought within its purview police officers, public servants, personnel in the management or on the staff of a jail, remand home or other place of custody established by or under any law or of a woman's or children's institution who are susceptible to misusing their position to ravish women under their care. It also made the punishment harsher for these class of violaters as it considered these persons to be under a far greater obligation to guard themselves against offending tendencies than ordinary men. More to this it also took cognizance of the alarming rate of gang rape, rape of pregnant women and rape of females under twelve years of age and therefore brought into existence the definition and punishment for these ghastly crimes, crimes which I'm sure were either unheard of or much less recurrent during yester - years.

Avinash: I see.

Me. Yeah!!. So what I'm trying to say is that no law is always fool proof. It's difficult to point out any law in any part of the world which has not been taken for a toss. The test is whether the roots of it are so reasonably firm that it could bounce back with force, even after being violated with mala fide designs.

Avinash: Why is it then that there is such pervasive disregard for law and its sanctions ? Why is that only if you are a land tiller or a impoverished stealer of goods you suffer the consequences of your wrong doings and the more affluent slither away from its rigours ?

Me: My friend, I'm afraid there's no strait jacket answer to that. I'll still try to allay your notions. In ancient times, in places like Rome, the cradle of legal history, law was evolved as a means to regulate the interests of a larger mass of people to the detriment of a erring few. It is said that the members of society came together and decided that they will unanimously relinquish assertion of certain rights for the greater benefit of regulation of order in their community. For example if all were to claim their right to walk on a particular road at a given point in time, then there would be complete breakdown of traffic, correct ?. Hence we have agreed that we'll relinquish our right to use the road when someone else is entitled to walk on it, that entitlement being left to be decided by that authority which is responsible for regulating traffic In short we've consciously trimmed our own cherished freedom, by virtue of a set of norms, in order to prevent chaos & anarchy.

Avinash: Right, right. Yes, I remember that story from my 12th Standard textbook, ummm. .. I forgot that author's name...ummm...Dammn !!!

Me: Don't sweat over it now.In any democracy, if you closely observe, the underlying principle of law making, you will discover that it is to subserve the greater benefit of the greatest majority. In India the law has been written on the cardinal principle that a hundred guilty might escape but one innocent man should not go the gallows. What one must immediately decipher from this philosophy is that the law has all kinds of protection writ into it for the 'not guilty'. Automatically therefore, it functions in a manner where it affords, to the innocent, all opportunities reasonably conceivable, to maintain that he's innocent. For example the burden of proving that a man is guilty is always, barring rare instances, on the party who makes such an allegation. The accused has to sit and wait till his prosecutor / prosecutrix succeeds in convincing the Judge that the accused is guilty. It's only after this stage has been reached at, that the accused will have to disprove all the evidence against him. Till then he can sit and relax. Though this principle does not hold good for a large number of mordern age crimes, yet it is the bedrock on which the criminal jurisprudence rests.

Avinash: Unbelievable..this is so outrageous. I get thrashed by you, looted by you and left for dead & I'll have to prove all this while you sit and enjoy my despair. Brilliant !!! That explains why there is such an appalling rate of convictions in criminal trials especially the ones, where the the accused is a man with contacts and the moolah. (fumes).

Me: I understand your loathing the system, but you must remember what I told you in the beginning; the law is written with an intrinsic safeguard against wrongful convictions, which is why, it casts the initial burden of proof on the prosecutor and not the other way round.

Avinash: I don't quite subscribe to this standard. To me it's a camouflaged gift to the cunning law breakers, a sort of encouragement to keep breaking it.

Me: Listen, you must understand that we are not a hardcore State like some of our neighbours, where accusation is often confused with verdict. To condemn a man, just because he's accused of something is not the sign of a healthy society. Let's in hypothesis, consider a case where you are seen standing near a dead body by some passers by. For all we know you could have been there to help him or rob him. During ensuing investigation, it's found that the deceased died an unnatural death under suspicious circumstances. No one knows who killed him and why. He was a vagabond with no criminal records or social acquaintances. The Police will definitely arraign you as the prime suspect and may be as the accused for murder.

Now if we are to go by your disownment of the existing standards of jurisprudence then imagine your harrowing condition in the trial, where for being wrongly picked up by the Police, you, instead of them will have to fight for your cause. The Police will then start habitually picking up anyone for any random crime, for it knows well that it has nothing to worry about as the poor fellow will have to work hard to save his liberty.

Avinash: But look at the cost we are paying for such a system. Its being brazenly twisted and steered for selfish ends. I don't know how many innocents, the system is saving from the gallows ,but it is surely protecting hundreds of guilty from being brought to book, as it lets them craftily manipulate law's inherent protection for the innocent, in their favour.

Me: What can I say my friend. You are cent percent correct. All I can tell you humbly is that it is a necessary collateral burden we must bear for upholding and maintaining the sanctity of our constitutional values and our ethics as a nation truly committed to equality of opportunity. Moreover I believe that its not the fault of the system alone, because when our founding fathers rested their faith on it, they did it on a bona fide assumption that their future generations will be sensible citizens devoid of corrupting vices. We have betrayed that assumption beyond every conceivable degree of treachery. When you say that a powerful man has manipulated the system, do not forget that he had several hands to aid and abet him in his malicious designs. Some persons somewhere must have made some concession in discharging their duty, for whatsoever motivation it may be, resulting in the victory of the manipulator.

Avinash: I must speak now of Kasab's case.

Me: Yeah, what about it ?

Avinash: Where hundreds of people saw him doing what he did on Close Circuit Camera TV, isn't it almost comical to again go through the detailed process of a criminal trial to prove his guilt.

Me: My answer is the same...I don’t want to recite. It may sound ridiculously outrageous, to offer someone like Kasab the same fairness of opportunity to defend himself, as is offered to any motorcycle thief. But you must realize that if we do not, it will set such ghastly precedence , that in future its example will be exploited to a regretful extent. I'll clarify further with two simple illustrations. Let's consider a case where, after a terrorist attack, the guilty are at large and there's such overwhelming pressure on the investigating agencies of our country, which is often seen in such cases, that it stages simpletons, either by coercion or by inducement, as the ones responsible for the attack. Now if the deeds are as ghastly as that of Kasab's then the prosecution will quote the precedent of Kasab's trial and demand skipping and short circuiting their trial, as was done in Kasab's case. If his plea were to be indeed entertained by the Court, then don't you think it'll be a travesty of justice. There is further a strong likelihood that the investigating agencies & the prosecution agents will become so addicted to such short - circuiting that, ghastlier the crime, the stronger their demand will be for hasting away with the trial process. Just imagine where we'll end up then.

Avinash: Hmm..

Me: Look Avinash, please do not misunderstand my deliberations as a complete support for the entire Kasab episode, I believe such actions must be responded with the harshest of deterrence, so that prospective criminals shudder before embarking themselves on similar pursuits. All I'm saying is that there is nothing wrong in achieving that end by means which are established by the founding fathers of our nation. At the same time I'm not quite sure if I could be of the same supportive opinion about the duration of time consumed by the legal process in Kasab's case.

Avinash: Exactly, you just asked my question bro. What about that, eh ? Years and years of piling on of cases and their pendency in Courts. How can you even think of justifying it, while haplessly wronged persons wait endlessly for justice?

Me : I will not justify it, I can't, I don't want to, because its wrong.

Avinash : So much about the law and legal process but no sermon on delay in conclusion of trials ? I know there’s nothing to be said... Hey is that rain I feel on my skin or just the wayward spray of the waves ?

Me: No its gonna drizzle, I guess ? Hey why not go to that cafe there and grab something for our tummies. Talking makes me hungry, you know? ! I've heard they serve mind blowing noodles there, and we can always talk about the "Justice delayed is justice denied" issue over steaming noodle strands. What say?

Avinash ( yelling ) : Noodles, here we come (runs frantically towards the restaurant with his hand shielding his head from the growing drizzle, as people around look on, startled at such an unannounced display of enthusiaism)

Me: (To nearby on lookers ) Never Mind !!!...Stop you lunatic (chasing Avinash )

                                                                                 ( be continued in Part III)

( Read Part - I here )

Saturday, 5 May 2012

Non Stop Generosity

The"Versatile Blogger Award" was first passed onto me by Gayathri ( ) about a month back.

By one way or another, I have been again conferred with " The Versatile Blogger Award"  by:-

1) Jayashree ( on 3rd May

2) Saher ( ) on 4th May

3) Jasmeet Kukreja ( ) on 4th May

4) Vijayabhaskar Siddareddi ( ) on 5th May

 I congratulate them for bagging the award and I heartily thank them all for passing it onto me.

 I sincerely believe that I am far away from the greatness characteristic to the writings of some of the Versatile Blogger Award ees whom I have read. So I stand greatly encouraged by the generous gestures of my fellow bloggers, in having considered me for this recognition..

As per the norm, I have also conferred this award on :- Amit Agarwal ji            Subhorup

They have to do these things :- 
•Nominate fellow bloggers
 •Inform the bloggers of their nomination
 •Share 7 random things about yourself
 •Thank the blogger who nominated you (with blog link)
 •Add the Versatile Blogger Award Pic on your blog post

Now the 7 facts about me, which I gotta tell all of you are:-

1. I strongly believe in God. For me He exists.

2. I love writing

3. I love reading

4. I  adore and respect people who tread on unconventional paths

5. I can do anything for my family. Its my biggest strength. I will give up anything which tends to compromise my family's happiness.

6. I love travelling.

7. I am crazy about films.

(That was really difficult to summarize).

Congrats once again to my fellow awardees.

Thanx again Jayashree, Saher, Jasmeet, Vijayabhaskar Siddareddi fo giving me this award.