The Blunt Truth

"Good evening and welcome once again to this week's Prime Time Debate; I'm Abhishek your host for this evening and tonight we'll discuss the case of the Sharma couple who are being tried for killing their daughter.

What has become of us? What evil has possessed this country’s men and women that they are killing their own children? Is this how we plan to build our nation? By killing in the name of honour? To discuss and debate these issues I have with me two very eminent personalities who in their own fields of work have earned great repute. To my right is seated Mr. Ashok Gupta, practising Advocate, and to my left is Mrs Anjali Priyadarshini, women right activist. 

So Mr Gupta, what do you have to say about this dastardly crime of the Sharmas? How on earth could the Sharmas kill their own child? And why are not we doing anything about it?

Gupta:  ‘I deem it to be my duty, before I say anything else, to humbly caution you and Ms Anjali. We must refrain from accusing the Sharma couple yet since it's slightly premature to declare the guilt of....'

Abhishek (almost yelling and cutting off Gupta) 'Nothing is premature here on the PTD. It's an open and shut case. The Sharmas murdered their daughter and they should be punished for their heinous act'

Gupta  (resuming carefully): 'We don't yet have facts supporting that, do we?'

Abhishek (leaning forward with bulging eyes): ' We don't have facts? Are you serious? I mean the girl was found stabbed to death in her bedroom, with no one but her parents at home that night, what more facts do you need?'

Gupta: 'That alone does not prove that her parents killed her. And by the way how are you sure that there was no one else there during the occurrence. There are Courts, there has to be evidence, there has to be proof of.........'

Abhishek : 'Oh so talking like a lawyer. You need proof, sure, a young innocent girl was killed  and you need proof.. Mrs Anjali, what say you Ma'm?'

Anjali : 'I am not surprised at all by Mr. Gupta's non chalance considering that every technical detail is always used as defence when it's a crime against a woman'

Gupta:  'What ?? When did I say that....'

Abhishek (again cutting Gupta off): 'I am in complete agreement with Mrs Anjali that we should be not be getting technical here.

Gupta : 'What do you mean 'technical'?....I'm only saying that there are Courts in which guilt of accused persons are proved, not on TV channels'

Abhishek (literally shrieking) : Let me tell our millions and millions of viewers that here at PTD we believe in being blunt and in being bluntly truthful. Perhaps Mr. Gupta here does not know that.

Gupta: 'What truth? We don't even know whose finger prints are there on the knife and who else were there in the house, the investigation is still going on,; why are you.....'

Anjali: 'Technical again'

Gupta to Anjali: 'What technical technical technical are you crying for? It is pure common sense that.....'

Abhisek (yelling again): 'It is an open and shut case Mr. Gupta. We at PTD believe in being blunt and in being bluntly truthful when it comes to crime against women'

Gupta: 'No one is denying it is a crime against a woman but the truth of the crime is yet to be.........'

Anjali: 'Technical technical'

Abhishek: 'PTD never supports crime against women'

Gupta: 'No one is supporting any.....'

Abhishek (interrupting again) :' At PTD we are blunt and we will find the truth...'

Gupta: 'But the truth is not...'

Abhishek: 'No no Mr. Gupta, we're not serving diplomacy tonight. We have only bluntness in our menu tonight’

Gupta: ‘What’s with you and bluntness anyway? Can’t you simply understand that that the truth will come out, but not here, it will come out in due process....’

Abhishek (completely rejecting Gupta's words): ‘No no Mr. Gupta...’

Anjali (sarcastic): ‘Ohhh..So Mr Gupta thinks this murder to be something simple. See ?! Didn’t I tell you? Men never take us seriously’

Gupta: ‘When did this become about how seriously men take women?’

Anjali: ‘Mr. Gupta is clearly discounting my intelligence to understand what he is trying to say here’

Abhishek: ‘Hats off to you Mrs. Anjali for being truly blunt here on national TV. We at PTD welcome it’

Gupta: All I’m saying is that Courts will find out the guilt of the Sharmas. We are not the ones who......’

Abhishek: ‘Come’on Mr. Gupta. You can do better than that. We ask you to be blunt and truthful’

Gupta: ‘What do you think I’m doing?’

Anjali: ‘You are missing the fact that Sharmas have murdered their daughter.’

Gupta: ‘What?? Didn’t you hear anything I’ve spoken so far?’

Abhishek: ‘Excellent, Mrs Anjali, that’s more like it. So much bluntness and honesty. You truly know your facts right’

Anjali: 'This is a crime against a woman. And she must get justice'

Gupta: 'Clearly, that justice is not to be done in this debate...'

Abhishek (intervening again abruptly): 'The verdict is crystal already. The Sharmas are guilty as hell and they will be sent to the gallows'

Gupta: 'Are we to fix guilt of Sharmas here on TV?'

Anjali: 'Now Mr. Gupta has a doubt on your abilities too Abhishek. Why don't you go ahead and call us all wrong Mr. Gupta? Me, Abhishek and the rest of all, with the exception of you'

Abhishek: 'Oh so blunt that one, Mrs. Anjali. We'll take Mr. Gupta's response to that'

Gupta to Abhishek: What exactly are you anchoring? A news show?  A debate on the merits of a legal case or the guilt of Sharmas or my guilt? Surely you aren't hosting a circus, are you?'

Abhishek (nodding vigorously, interrupting) : 'No No No Mr. Gupta. I anchor only the quest for truth and a blunt one at that'

Gupta: 'Well the truth is that you are impatient, speculative and verging on absolute vanity....'

Anjali (jumping in): 'Are you saying that the Sharmas are innocent'

Gupta 'I'm not saying anything about innocence or guilt. I'm just saying that.......'

Abhishek: 'Yes say it bluntly'

Gupta : ' Do you ever let your guests speak?'

Abhishek: 'We like blunt people'

Gupta: 'Well you can go ahead and like whatever and whoever you want but I must get chance to speak whatever I want to. Ok?'

Anjali: 'Perhaps you want a ceremony of bugles and trumpets for proving that the Sharmas are guilty, Mr. Gupta'

Abhishek: Oh my God, that's as blunt as it can get. As we can see Mr. Gupta has no blunt truth to offer'

Then in a sudden inexplicable moment of frenzy and unrest which simultaneously gripped the host and the guests, beginning with Mr. Gupta losing his patience and banging the table hard with his hand, each of them began speaking and yelling at the same time. It was difficult to decipher what they spoke. The words all tossing over each other, blending in a manner so as to sometimes sound like Arabic, sometimes Hindi and partly like deafening war cries. The two gloriously suited men and the  bespectacled lady seemingly full of intellect spoke in such aggressively disregarding fashion that one grocer in a nearby ‘Hat’ who was watching the show at his shop reportedly remarked ‘Arre baba, they are shouting like they are in some ‘hat’. Abhishek, with some residual propriety of a decent host stayed quiet, but not for long. He soon resumed his race of words with the two. The picture was somewhat like this. Mrs. Anjali’s mouth had become so wide open in cut-throat oratory even the dumbest of brains could have assumed that she cawed only three words ‘Justice’, ‘Women’, ‘Technical’ . Atleast these were the words which could be faintly audible from layers and layers of thunderous eloquence from all three directions. Gupta kept banging the desk and pleaded for a couple of seconds so that for once he could speak fully. None heeded. He resumed his assault on Abhishek for being a poor host. And Abhishek kept his banner of bluntness flying high. His voice was the loudest and the others were no match for his roar. Ofcourse, the other two didn’t have his advantage of habit. Some respite was offered when Gupta furiously yanked out the microphone fitted to his shirt, slammed it on the table and walked off the show yelling ‘To hell with your blunt truth.'

Director of the show to Abhishek(on Abhishek's earpiece): 'I just got a call from Legal. They are saying we should not discuss about sub judice cases till Court has not decided the case. Now go and get Gupta back'

Abhishek: 'Ladies and gentlemen we'll break for commercials and return in a moment with other debates. Stay with us’

Abhishek jumps off his chair and runs after Gupta "Mr. Gupta please listen to me. Just for a moment, please listen....."

** 'The Blunt Truth' is a work of fiction and any resemblance of any part or whole of it with any person, people, organization or any event is coincidental.

Did You Know ?

Privileged communications is an exchange of information between two individuals in a confidential relationship.  A privileged communication is a private statement that must be kept in confidence by the recipient for the benefit of the communicator. Even if it is relevant to a case, a privileged communication cannot be used as evidence in court. Privileged communications are controversial because they exclude relevant facts from the truth-seeking process. Generally, the laws that guide civil and criminal trials are designed to allow the admission of relevant evidence. Parties generally have access to all information that will help yield a just result in the case. Privileged communications are an exception to this rule. 

Privileged communications exist because society values the privacy or purpose of certain relationships. The established privileged communications are those between wife and husband, clergy and communicant, psychotherapist and patient, physician and patient, and attorney and client.

These relationships are protected for various reasons. The wife-husband and clergy-communicant privileges protect the general sanctity of marriage and religion. The psychotherapist or physician and patient privilege promotes full disclosure in the interests of the patient's health. If patients were unable to keep secret communications with psychotherapists or physicians relating to treatment or diagnosis, they might give doctors incomplete information. If doctors received incomplete information, they might be unable to administer health care to the patient, which is the very purpose of the doctor-patient relationship.

The following communications fall in the category of privileged communication under the Indian Evidence Act and they cannot be ordinarily disclosed to the Court by the person to whom they are made:-

• All verbal & written communication made between husband and wife during the existence of their marriage, is strictly protected from disclosure. Neither spouse can be compelled or permitted in a Court of law to give evidence of what has been told to him / her by his / her spouse. For example if a husband comes and tells his wife that he has committed murder, then, even if the wife wants to disclose the said fact, her evidence cannot be accepted by Courts as her knowledge is based on 'privileged communication'. ( However this privilege can be waived by the party making such communication)        

         But if, say for example,  murder has been committed by a woman's husband in her presence, 

         she is free to give her evidence that she saw her husband commit murder.

• No public officer can be compelled to disclose official communication made to him in official confidence, when he considers that public interest will suffer by such disclosure.

• No Police Officer can be compelled to say from where he got the information as to the commission of any offence.

• If a man, with the purpose of engaging an advocate to defend him in Court, goes and tells that advocate that he's committed a crime and he even narrates to him how he did it the lawyer is barred from disclosing what he told him. Meaning that the lawyer cannot go and tell the Court that actually his client has committed the crime since he himself confessed the same before him. This bar also extends to clerks and servants of the lawyer who ordinarily have the scope of hearing such communication e.g. typist, associates etc. Such a privelege can be waived if so chosen by the client
• A legal adviser is also prohibited from disclosing information given to him by his client.

Information Courtesy :-

Indian Evidence Act, 1872

legal-dictionary.thefreedictionary.com

Exploring Our Justice Delivery System

1. )            On Law Making & Myths About the Justice Delivery System

      " 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 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................... "

                    (Read more at On Law Making & Myths About the Justice Delivery System)

     2. )           On Free Speech, Media Trial & Prejudice

                   "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................"

                    (Read More at On Free Speech, Media Trial & Prejudice )


     3.)           Justice in Jeopardy... Why ?

                  " ....what is essential in this context is that when we read or hear against our judicial 
                    system we, as responsible persons, must also strive to analyse the cause (s) behind those 
                    facts.... "

                   (Read More at Justice in Jeopardy... Why ? )






        

Justice In Jeopardy.. Resolving The Debate

I write this article motivated by the query that a dear fellow blogger, Rahul V. Nair (who blogs at freedomofexpression ) put to me as thus, after reading my article Justice in Jeopardy... Why ?

"Hi Anupam Nice Post, could you pls explain how our Judiciary should be upgraded for future( I would like to know about it in detail)and how allotting more money in the budget can help it. I am just curious to know about it that's all, hope u won't mind telling."

First of all I heartily thank Rahul and all other readers who gave their valuable time for reading Justice in Jeopardy... Why ? and sharing their precious opinions in this regard. As I have mentioned earlier in that article. I wrote it when I read another article called "Justice In Jeopardy" written by a learned fellow blogger. I had to write it, especially when I read the comments of people who read her article. Judiciary is so often misunderstood and for all the misinformed reasons. So I took it upon myself to clarify a few issues. So that people can make informed opinions then. It was after reading my article that Rahul has asked his question and I'm more than glad to answer his query.

I don't mind at all answering his highly significant question. Half way replying to his comment / query I decided to dedicate a full post for it.  As for his question, it's very difficult to write everything I want to say. There are so many intricate issues that provide the lifeblood for our judiciary that it's difficult to concisely put them in a single answer. However concentrating on the two major issues that I'v dealt with in my article viz. delay in disposal of cases and mechanism of investigation, I'll state some bullet points which in my humble opinion could be crucial in improving the present state of affairs.

Let me first deal with the delayed justice aspect. It must be borne in mind that the actual rate of disposal of cases per judge has been consistently improving in recent years, but the rate of institution of proceedings has been growing at an even faster  pace. It is this growing gap between the rate of disposal and the rate of institution of litigation that is a cause for worry. It is in response to these problems, that it is important to implement effective strategies for proper case management. I'll say that there needs to be a phase wise exponential increase in the number of Courts and Judges all over the country. Now that includes increasing the number of Courts in a district, appointment of Court staffs, building of infrastructure to let the Courts function in a dignified manner.

The approach has to migrate from adversarial system to re conciliatory wherein instead of fighting out long drawn legal battles, parties with the assistance of Courts and their advocates are able to mutually come to a settlement in an expeditious manner. Several such methods such as Lok Adalats, Arbitration techniques, Conciliation proceedings have to be given utmost significance for dispute resolution. These are popularly known as ADR (Alternate Dispute Resolution) techniques . However this is more likely in relation to civil disputes than criminal cases. Since crimes are treated as wrongs against the society rather than as wrongs against the victim only.

Case management and planning is also vital to the functioning of a modern judiciary. Its implementation will however at some stage require serious reflection on the changes required in our system. I am however confident and  optimistic that if implemented appropriately it will go a long way in addressing the problems of arrears and delay.  

Then there have to be substantial changes in the procedural laws of our country, which I believe, more often than not, tie the hands of Courts from coming down heavily on protracting litigators. This includes mandatory large amount of fine / costs imposable on parties who deliberately delay hearing of their cases and mandatory fixation of time limit for disposal of cases, particularly sensitive cases like crimes against women and terrorism cases. These will make a significant improvement in the rate at which cases are being disposed of today. One must understand that no Court or Judge would like to see his office stacked with a large number of case records. Courts are always inclined to lessen their burden. It's a natural tendency. But co operation must also flow from the litigators including their respective lawyers, who must make it a point not to delay hearing of their cases.

The Govt. also needs to substantially increase the number of Fast Track Courts and special courts, and come up with special tailor made procedural laws which would govern their functioning. For example a fast track court set up to adjudicate upon the trial of certain alleged terrorists cannot expedite the trial in a noteworthy manner, if it too like normal Courts is guided by the same laws with regard to procedures of hearing and adjudication.

The second most important aspect of dispensation of justice demands a fair, fearless and effective investigation. So that the Courts have before them a clear picture through the evidence collected by such exemplary investigation. Investigators have to be free from all kinds of political and / or institutional pressures in performing their duties. In several cases delay in hearing occurs due to non attendance of official witnesses especially Police witnesses. The Police deptt. is understaffed and they find it difficult to manage their time between attending to highly urgent duties of law and order management and their task of attending equally important Court proceedings and giving their evidence. My humble suggestion is to separate a specific department of Police dedicated to investigation and giving evidence in cases. This would solve the problem of their unavailability to testify in Courts as well as help in timely adjudication of cases.

The much talked about witness protection program is also a crying need of the hour. Since it is often seen that witnesses say something to Police at the time of investigation but change their stand when it comes to testifying under oath before a Court. This results in the acquittal of the accused persons leading to a popular belief that Courts are incapable of punishing the guilty. What can be done here is that witnesses have to be given assurance of real protection and if need be rehabilitation in lieu of their truthful testimony in Courts. But this requires indulgence of honest officers at all levels of this system. If any witness suffers despite such a witness protection scheme, no one will ever come forward to testify the truth in Courts.

Furthermore there needs to be a realistic system of expenditure reimbursement of witnesses who come to the Courts. One which would adequately repay them the expenses incurred by them in coming and testifying for a case. It is also important that the mechanism which allows this facility is a swift one and the reimbursement is done without much hassle to the witness. It is also required that if the party who is supposed to examine / cross examine a particular witness on a given date of hearing, intentionally evades doing so, without any just cause, for unduly harassing the witness or for any other mala fide purpose, he be made bound to pay adequate cost or compensation to that witness. If such actions are still repeated then there must be some law which mandates forfeiting that person's right to ask any question to that witness thereafter.

I've also been asked as to how allotting more budget for the judiciary will help in improving it. Isn't it obvious that all the above initiatives will require infrastructure, appointment of staffs etc for which budget is an indispensable essential. 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. The Govt. has to make a specific planned budget allotted to judiciary, much more than the present share it accords for it so that all the above aims are achieved in a time bound manner and the hope of common man is redeemed in the justice delivery mechanism. No nation which aspires to have a sound and corruption free governance can claim to achieve it without strengthening its judicial system first.

The readers must understand that there are several technical aspects which also require substantial focus for a holistic upgradation of our judiciary. The issues which have been discussed here are only a few of those. The discussion is much complex and multifaceted to be confined to a single write up. Hence readers are advised not to construe these factors as conclusive or exhaustive in determining the future of our justice delivery mechanism.

Law Against Insult To National Flag

MUST KNOW RULES / CODE CONCERNING THE PROPER HOISTING AND TREATING OF THE INDIAN NATIONAL FLAG

The Prevention of Insults to National Honour Act,1971 is a law in India prohibiting desecration of or insult to the country's national symbols, including the flag, constitution, and anthem.

The national legislature passed a version of this law in 1971, with significant amendments in 2003 that further prohibited many previously common uses of the flag, such as draping it over a podium during a speech, using it as decor, or incorporating it into clothing designs.


This Act is widely applied in all cases where a case of insult to National Honour, through disrespect to National Symbols, is reported, public or not, as well as intentional or otherwise.

Whoever in any public place or in any other place within public view burns, mutilates, defaces, defiles, disfigures, destroys, tramples upon or otherwise shows disrespect to or brings into contempt (whether by words, either spoken or written, or by acts) the Indian National Flag or the Constitution of India or any part thereof, shall be punished with imprisonment for a term which may extend to three years, or with fine, or with both.

Explanation 1 – Comments expressing disapprobation or criticism of the Constitution or of the Indian National Flag or of any measures of the Government with a view to obtain an amendment of the Constitution of India or an alteration of the Indian National Flag by lawful means do not constitute an offence under this section.

Explanation 2 – The expression, “Indian National Flag” includes any picture, painting, drawing or photograph, or other visible representation of the Indian National Flag, or of any part or parts thereof, made of any substance or represented on any substance.

Explanation 3 – The expression “public place” means any place intended for use by, or accessible to, the public and includes any public conveyance.



Explanation 4 - The disrespect to the Indian National flag means and includes —

(a) a gross affront or indignity offered to the Indian National Flag; or

(b) dipping the Indian National Flag in salute to any person or thing; or

(c flying the Indian National Flag at half-mast except on occasions on which the Flag is flown at half-mast on public buildings in accordance with the instructions issued by the Government; or

(d) using the Indian National Flag as a drapery in any form whatsoever except in state funerals or armed forces or other para-military forces funerals; or

(e) using the Indian National Flag:-(i) as a portion of costume, uniform or accessory of any description which is worn below the waist of any person; or(ii) by embroidering or printing it on cushions, handkerchiefs, napkins,undergarments or any dress material; or

(f) putting any kind of inscription upon the Indian National Flag; or

(g) using the Indian National Flag as a receptacle for receiving, delivering or carrying anything except flower petals before the Indian National Flag is unfurled as part of celebrations on special occasions including the Republic Day or the Independence Day; or

(h) using the Indian National Flag as covering for a statue or a monument or a speaker’s desk or a speaker’s platform; or

(i) allowing the Indian National Flag to touch the ground or the floor or trail in water intentionally; or

(j) draping the Indian National Flag over the hood, top, and sides or back or on a vehicle, train, boat or an aircraft or any other similar object; or

(k) using the Indian National Flag as a covering for a building; or

(l) intentionally displaying the Indian National Flag with the “saffron” down.


National Anthem

Whoever intentionally prevents the singing of the Jana Gana Mana or causes disturbances to any assembly engaged in such singing shall be punished with imprisonment for a term, which may extend to three years, or with fine, or with both.

As Such the Law recognizes all the above cases as offences and convicts the Penalties or sentences as follows.

Whoever having already been convicted of an offence under section 2 or section 3 (comprising offences as mentioned above) is again convicted of any such offence shall be punishable for the second and for every subsequent offence, with imprisonment for a term, which shall not be less than one year 

(This is a concise statement of the law. Readers are advised to study in detail regarding the subject for better information concerning the same).

Justice in Jeopardy... Why ?

A very talented fellow blogger recently published an article titled "Justice in Jeopardy" wherein she has very lucidly pointed certain issues which concern the Indian judiciary. I intend to explain some of the issues raised in that article.

First things first. I'm by no means claiming that Indian judiciary is pristine or is under no requirement of significant upgradation and improvement. I'm nobody to dispute that reality since anyone who has had an experience with litigation in an Indian Court is likely to have had a vary harrowing experience, particularly in reference to the time consumed in arriving at a verdict. Also several eminent jurists have pointed several foibles in the justice delivery system of our country and I do not intend to contradict them. But what is essential in this context is that when we read or hear against our judicial system we, as responsible persons, must also strive to analyse the cause (s) behind those facts.

The article that I've mentioned starts with the hackneyed grievance that the wait for justice in India is always unduly protracted. Cases to get decided take an unbelievably long time. So much so that it defeats the very purpose of the verdict at times. Ever wondered what's the cause of that ? Any person who has read extensively regarding this issue will understand that this happens mainly due to shortage of Courts vis - a -vis a relative docket explosion. While the rate at which litigation are being initiated have gone up substantially, the number of Courts and Judges to decide them haven't seen a proportional increase. It is essential for us to know that there is something called the Judge - Population ratio. It denotes the number of judges per million (ten lakh) people in a country. In the USA 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.  Clearly the concerned Ministry has not lived up to the task. And the blame for large pendency of cases unfortunately goes to the judiciary.


 Now the budget. Ever wondered who controls the expenditure for building judicial infrastructure in the country ? Of course the Govt. 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.

Despite all these hurdles, judiciary is not sitting quietly. Under the directives of the Hon'ble Supreme Court several Courts in different States are functioning as 'Evening Courts', beyond the normal day time functioning of Courts. Where focus is being put on taking up for hearing many old cases which are pending adjudication. More to this multiple drives are being regularly conducted by way of District Level, and State Level Lok Adalats where the Courts are taking extra steps to cause the parties to amicably settle their cases without further litigation. These steps are yielding quite promising results. But considering the mountain pendency figures, these efforts are unable to bring about any substantial change therein, for the public to realize that such endeavours are being made in the first place. After all there is a human limit to which Judges can give their efforts in disposing of so many cases. 

It has been further pointed out in the relevant write up, that a rich man can go to some foreign country under some false pretext while his lawyer keeps making appearances for him and on the other hand a poor man has no such liberty. I humbly need to dispute this statement as a misinformed generalization of the state of affairs. It is the law of this land that no person ought to be ordinarily forced to attend the Court proceeding, if his presence somewhere else is necessary, unless his attendance is really indispensable for such proceeding. e.g. in a hit and run case the witnesses need to identify the accused hence on each date of evidence the accused must be present even though he's on bail. But in a cheque bounce case, the evidence is mainly in form of documents, hence the parties can appear through their lawyer. Similarly in civil cases there is barely any need for the parties to personally appear on each and every date unless the proceeding demands so. Hence unlike what has been said,  a poor person too can appear through his lawyer, one appointed by him or by the State.

She has further, in her article, very rightly doubted the concept of true justice as a mere facade. It’s mainly 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. I'm afraid the cause of this anomaly is much complex, fundamental to our legal system than a mere allegation that justice is on sale for the rich and powerful. One must understand a country's judiciary is as potent and efficient as are it's a) Investigative Agencies and b) Witnesses. We have countless examples where witnesses have faltered in Court. If one goes and sees for himself, he is likely to discover several witnesses simply testifying before the Courts that they know nothing about the incident. Whereas they have given full statements before the investigating officer regarding their knowledge of the occurrence. So it's either the Police or the witness who lies. But in either scenario the Court is rendered with no other option but to set free the accused.

It has been lamented in the article that "Justice in this country can be cheaply bought or easily abused." It's necessary to know certain facts about the process of litigation before we judge the truth of that belief.

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 (proceeding with) of the offences despite the Police's final report. If the Court doesn't then the case is closed ( & the victim can appeal to higher Courts), 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 one thinks that a Court has set free a guilty, or that justice has been cheaply bartered, think again, what actually was bartered. It was some witness who got scared or got greedy and decided not to tell the truth to the Court. Or the investigating officer who coerced someone to lie. The Court is not powerless in such situations, but the witness harassed must complain of the same to it.

The article also states that "we have judges.. with exceptions ofcourse, who have bartered their integrity for immoral and unethical benefits". Such a statement is likely to give an impression as if judges getting exposed for their corruption is an everyday affair. Now we all know that is not true. There are allegations but very sporadic.  Even if we assume that they do, a corrupt decision making process by a Court ultimately is of no real benefit to the person who seeks to gain from it, since the suffering party can always get that Court's decision overruled in appeal. 

The concerned article cites a sad example of a pregnant woman Kshama Chopra was killed when a BMW rammed the car she was travelling in. The accused was granted bail by submitting a bond of Rs 50,000. Bail has nothing to do with punishment. Therefore it's wrong to compare the value of life of a person with the surety / bail amount as it is only a security for his attendance in Court. If he dodges the law then not only that amount will be forfeited but also the Court can issue non bailable warrant against him and if he still doesn't appear then it can attach and sell off his property and compensate the victim, subject ofcourse to the proper law in this context. Unfortunately it's the law that has been written like that. In a hit and run case, the accused is most likely arraigned under Sections 279, 336, 337 or 304 A of IPC. Sadly all these sections are bailable offences. Hence the Court is bound to let off the accused on bail. It cannot set a large sum of money as bail amount since that'd be indirectly creating hardship for him to get bail in a bailable case. However regarding Kshama Chopra's case, I could opine better if I could know under what sections of law the accused was charged.

The article has doubted the independence of judiciary in view of the Kasab's case. Please remember that the independence of judiciary is always measured in its decision making process not in execution of its orders. Since technically, execution of it's orders is the duty of the executive. Furthermore it is indeed unfortunate and unfair to doubt the independence of our judiciary especially after it's relentless vigilance and vindication of public interest in the 2G scam and after exempting Vodafone from crores of rupees of tax payment to our Govt or sending SITs hunting for the corrupt and the wrong . Though I've a lot to say about the Kasab's case I humbly refrain from doing so since the highest Court of our land is seized with it's adjudication. There will be a time for my view on it and I'll surely give it then in retrosepct.

As far as the Judges of the Supreme Court, High Courts and other subordinate Courts are concerned I'm nobody to vouch for their integrity. All I can tell you that as subjects of constant public scrutiny, judges accept tremendous personal restrictions in their lives, that is often viewed as burdensome by the ordinary citizen and they do so freely and willingly. They do not socialize as much as they wish to. Their whole life is spent avoiding places that shimmer with frolic and glamour. Restraint is an everyday indulgence. That's the cost they pay for they respect and authority they command in Courts. Taking stray examples of deviation and generalizing judges as hypocrites and arrogant is extremely sad. I've known judges, now retired, who have lived their life under so much financial difficulty, yet with their head held high due to the restraint and exemplary code of ethics that they practiced in their lives and in their profession. A simple tete - e tete' with them will leave you awestruck and in reverence of their wisdom. Let's not forget what the Courts of this country have done for us and our fundamental rights after independence. When there was widespread onslaught on cherished liberties by those drunk with power. Since I've pointed out the real source which could alter the fundamental problem of delay in case disposal, it wouldn't be out of context to remind ourselves that the Courts have and always will vindicate the stand of the common man. Despite all the discussed follies, judiciary remains the common man's last hope. No matter how much we criticize the judiciary, we'll still run to it when we face attack against our freedom, person, family or property, because deep down we know that things won't be the same there as they were in some other office or forum.

This article should not be construed as one written in an argumentative tenor against what has been written by my fellow blogger in her article "Justice in Jeopardy, rather it should be read as one written by an ardent believer in the goodness and fairness of our judicial system and a student of law who has a little first hand experience of the legal system.  

For related discussions read

The Conversation - II ((On Law & Justice ....)

The Conversation - III (On free speech, media trial & prejudice ) and

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


WISH YOU A PROMISING AND HOPE INSPIRING 65TH INDEPENDENCE DAY.

About Bail

"The society has a vital interest in grant or refusal of bail because every criminal offence is the offence against the State."        

                                                                      (The Hon'ble Supreme Court of India)

There are certain popular notions which I've heard from various quarters, concerning the granting or not granting of bail to arrested individuals. But before resorting to the legal phraseology for clearing those, let me just take a moment of your time in attempting to explain the concept of bail for persons who don't know it. Law provides for curtailment of liberty by way of arrest in certain prescribed scenarios. Bail is the security that a person is directed to give to the Court / releasing authority in lieu of the conditional freedom he is granted from such curtailment. Bail may be granted with or without surety. A surety is a person who provides security in lieu of the arrested person's release and undertakes before the authority to ensure that the latter abides by the conditions of his bail. In case of non abidance the surety as well as the accused may be proceeded against. Usually the surety may provide security in terms of his fixed assets or cash. Let's say that an arrested accused person's bail is fixed at Rs 20, 000 with one solvent surety for the like amount with the conditions that the accused shall co operate with the Police investigation and that he shall not tamper with the evidence in any manner and he shall not abscond or leave the jurisdiction of the Court without it's permission and that he shall appear on each date of his trial in Court. Then in order that the accused is actually released, he shall have to find a person who will stand surety for his bail and furnish security worth Rs 20, 000 which can be liquidated if there is non compliance with the conditions of bail. 

After the issue of jurisdiction of a particular Court to grant bail is determined, comes the question of consideration of the plea of bail. The Courts generally take the following factors into consideration while deciding whether or not to release an accused on bail:- 

• the seriousness of the offence in terms of its gravity and the nature of punishment provided for it and 
• whether the accused would be readily available for trial (Is he likely to abscond ?) and 
• whether he is likely to use the discretion granted in his favour by tampering with evidence (threatening / intimidating / inducing witnesses). 
• criminal antecedents of the accused 
• whether there is a likelihood of the accused person's indulgence in any other offence (habitual offender) 

The fundamental idea always ought to be bail and not jail, except where there are circumstances suggestive of fleeing from justice or thwarting the course of justice or creating other troubles in the shape of repeating offences intimidating witnesses and the like, by the accused who seeks enlargement on bail from the Court. Bail should normally not be withheld as a punishment if, after taking into consideration other factors, the accused is entitled to the grant of it. At the stage of considering the application for the grant of bail, the Courts do not go into the detailed examination of evidence as that would end up being biased to the prosecution case alone. Since at this stage no witness has come forward and spoken against the accused. Therefore if Courts while considering bail plea of the accused, express their opinion on his guilt at that stage, it'd amount to pre- judging the case basing only on the Police side of the story. Since the only materials available with the Court then are the Police papers.

Myths of Bail 

It is more often than not, believed that when an accused especially one with a high profile, is released on bail after being charged with a grave crime, it signifies that the justice delivery system of this country has gone to dogs. Most of us live under this notion that an accused, if released on bail is actually freed forever. That is not the truth. One must always remember that every civilized nation thrives on the same fundamental principle of justice delivery which says that no one can be punished without a fair trial and proof of his guilt beyond every reasonable doubt. That being true, how can we claim that once somebody is charged with a crime he ought not be released on bail ? That would tantamount to punishing him before his guilt is proved. Moreover when someone is released on bail, he is so released under certain conditions which he has to abide by at every cost. If the bailed out person is a habitual offender and he ends up committing another offence or threatens the witnesses etc. then the victim can apply to the Court for cancelling his bail and he will be back in jail.

I wish to emphasize here upon a certain crucial point of law. To grant or to not grant bail is always a matter of discretion of the concerned Court. No one can claim bail as matter of right, in a non bailable case , even if all the considered factors are favourable to him. Still the Court may refuse to release him on bail. Of course the accused may then approach the higher Courts for that relief. Somebody once asked me as to why then hundreds of under - trial prisoners are languishing in jails without being released on bail. The problem in their cases, mostly, is their inability to furnish surety, security etc for being released on bail. Many of them do not have anyone to take care of their case due to lack of money. The State does provide a SDC (State Defence Counsel) for handling their cases. But even then they are unable to furnish bail bonds or surety as that fund must come from their own pockets. It is very unlikely that the Courts will release them on their personal surety since it would be very difficult to secure their presence in case they decide to abscond. However today there are laws in place, which mandate an under trial prisoner's release without any condition after the passage of a certain period of time which, not in any case, can be longer than the prescribed period of imprisonment for the offence he's being tried for.

I wish to end by quoting a landmark interpretation of the bail principles by the Hon'ble Supreme Court of India in the case of Siddharam Satlingappa Mhetre Vs State of Maharashtra and Others (decided on 2nd December, 2010) . It reads as thus

"The order granting or refusing bail must reflect perfect balance between the conflicting interests, namely sanctity of individual liberty and the interest of society. The law of bails dovetails two conflicting interests, namely, on the one hand, the requirements of shielding the society from the hazards of those committing crimes and potentiality of repeating the same crime while on bail and on the other hand absolute adherence of the fundamental principle of criminal jurisprudence regarding presumption of innocence of an accused until he is found guilty and the sanctity of individual liberty."

(Readers are advised to carry out a further study on the issue for a detailed information on the subject of bails.)

Right To Die

“Death is our friend, the truest of friends. He delivers us from agony. I do not want to die of a creeping paralysis of my faculties — a defeated man.”

                                                                                                                                              
                                    -           Mahatma Gandhi 




                  


                 The debate and chaos over euthanasia is antique and has engulfed many intellectuals and luminaries in its pervasive shade. The issue however still manages to retain its controversial characteristic owing mainly to the fact that none of the debates concerning euthanasia in the past have given us any solid answer to the question “Whether euthanasia should or should not be permitted in a civilized society”? The line that divides the two groups, one which answers the above question in affirmative and the other that answers it in negative, still draws strong. Certainly one of society's traditional attitudes, expressed morally, legally, philosophically, and religiously is that human life merits special protection. In fact, some claim that human life is of absolute value. For them the taking of human life then becomes a wrong even in the case of voluntary euthanasia. And for some this perceived moral wrong should be prohibited by the full force of the law. The clash here is between protection of human life and the right to decisional autonomy, which also raises the question of the extent to which the criminal law should be used to enforce particular moral positions.

                   In the modern context euthanasia is limited to the killing of patients by doctors at the request of the patient or under a bona fide belief that further living of that patient is either painful, meaningless or both in order to free him of excruciating pain or from terminal illness. When medical advances made prolonging of the lives of dying or comatose patients possible, the term euthanasia was also applied to omission to prevent death. In its earlier form, it was used as an omnibus term to signify a painless death. In its modern context, the term is used as a deliberate euphemism to reduce the guilt of an act which is a division of murder by injecting the term mercy. Euthanasia is defined as an intentional killing by an act/omission of person whose life is felt is not to be worth living. The definition of euthanasia is simple but the concept of euthanasia proposed by adherents of the euthanasia movement is complex and has profound consequences for all.

                 The definition involves three things: intention, motive and causation.  The intention is to kill.  The motive is to eliminate suffering.  And the cause of death is human intervention, not some underlying illness.  Where one or more of these defining elements is absent, it is not really a case of euthanasia.

                     
               It is important that euthanasia is not confused with assisted suicide. The latter involves a patient’s voluntarily bringing about his or her own death with the assistance of another person, typically a physician. In this case, the act is a suicide (intentional self-inflicted death), because the patient actually causes his or her own death. Thus, while in assisted suicide the doctor makes available to the patient the means by which he can kill himself, in euthanasia the doctor himself (by act or omission) kills the patient. The issue of assisted suicide is closely related to that of euthanasia because it also involves questions of similar nature. Furthermore, some countries have preferred to legalize assisted suicide though they remain averse to permitting euthanasia.

                      

THE LAW ON EUTHANASIA

                        In India there is no specific law concerning euthanasia, though it is much desirable. The need of the same arises when a person is terminally ill and not capable of  being cured. The sufferings of an ill person need not be prolonged by forcefully keeping him alive with all the pains and sufferings. That is definitely a violation of Article 21 of the Constitution of India which provides a right to dignified life

                        In our country, euthanasia is undoubtedly illegal. Since in cases of euthanasia or mercy killing there is an intention on the part of the doctor to kill the patient, such cases would clearly fall under first clause of Section 300 of the Indian Penal Code, 1860. However, as in such cases there is the valid consent of the deceased Exception 5 to the said Section would be attracted and the doctor or mercy killer would be punishable under Section 304 for culpable homicide not amounting to murder. But it is only cases of voluntary euthanasia (where the patient consents to death) that would attract Exception 5 to Section 300. Cases of non-voluntary and involuntary euthanasia would be struck by proviso one to Section 92 of the IPC and thus be rendered illegal. Euthanasia and suicide are different, distinguishing euthanasia from suicide, Justice Lodha of the Bombay High Court in Naresh Marotrao Sakhre v. Union of India observed inter alia

“Mercy killing thus is not suicide and an attempt at mercy killing is not covered by the provisions of Section 309. The two concepts are both factually and legally distinct. Euthanasia or mercy killing is nothing but homicide whatever the circumstances in which it is effected.”

                        The law in India is also very clear on the aspect of assisted suicide. Abetment of suicide is an offence expressly punishable under Sections 305 and 306 of the IPC. Moreover, after the decision of a five judge bench of the Supreme Court in Gian Kaur v. State of Punjab it is well settled that the “right to life” guaranteed by Article 21 of the Constitution does not include the “right to die”. The Court held that Article 21 is a provision guaranteeing “protection of life and personal liberty” and by no stretch of the imagination can extinction of life be read into it.

               Another problem that arises here is that the term ‘terminally ill’ has no precise definition. While some proponents define terminal illness as any disease that curtails life even for a day. Some other laws define terminal as one from which death will occur in a relatively short time or within a span of six months. The focal point is that all these definitions show ambiguity and medical experts have acknowledged that it is virtually impossible to predict the life expectancy of a particular individual.

                In India, the sanctity of life has been placed on the highest pedestal. The right to life under Article 21 of the Indian Constitution has received the widest possible interpretation under the able hands of judiciary. This right is inalienable and is inherent in us. It cannot be and need not conferred upon us. The Indian Constitution says that the right to die is not a fundamental right under Article 21. Whether the right to die is included in Article 21 of Constitution came for consideration for the first time before the Bombay High Court in The State of Maharashtra v. M.S.Dubal . The Court held that the right to life includes the right to die. Consequently, the Court struck down Section 309 of IPC, which provides punishment for the attempt to commit suicide as unconstitutional. The Judges felt that the desire to die is not unnatural, but merely abnormal and uncommon. The Supreme Court in P.Rathinam v. Union of India upheld the Bombay High Court's decision. However, in Gian Kaur v. State of Punjab, the constitution bench of the Court overruled P. Rathinam's case  and held that right to life under Article 21 of the Indian Constitution does not include the right to die or the right to be killed. The Court held that the Right to Life is a natural right, embodied in Article 21. However, suicide is an unnatural termination or extinction of life and, therefore, incompatible and inconsistent with the concept of Right to Life. It was held that this concept was unrelated to the Principle of Sanctity of Life or the Right to Live with Dignity.

The Court made it clear that the right to life including the right to live with human dignity would include the existence of such a right till the end of natural life. This also includes the right to a dignified life up to the point of death, including a dignified procedure of death. This may include the right of a dying man to die with dignity when his life is ebbing out. However, the right to die with dignity at the end of life is not to be confused with the right to die an unnatural death, curtailing the natural span of life. The Court reiterated that the arguments to support the views of permitting the termination of life in such cases (e.g. a dying man, who is terminally ill and is totally dependant on life support systems), by accelerating the process of natural death, when it was certain and imminent, was not available to interpret Article 21 to include the right to curtail the natural span of life.

RESOLVING THE DEBATE:-

                     

         It is believed that the potential of misuse of provisions allowing non-voluntary and involuntary euthanasia is far greater than that of the misuse of provisions seeking to permit voluntary euthanasia. In the present scheme of criminal law it is not possible to construe the provisions so as to include voluntary euthanasia without including non-voluntary and involuntary euthanasia. Parliament should therefore, by a special legislation legalise voluntary euthanasia while expressly prohibiting non-voluntary and involuntary euthanasia. Legalising euthanasia would not have any effect on the provisions relating to suicide and abetment thereof as euthanasia and suicide are two completely different acts. A fairly practical scheme under which the investigation procedure would begin before the death is suggested and it is only after the investigation is complete that the doctor would be allowed to let the patient die. Finally, a supervisor would issue a certificate allowing the doctor to let the patient die. Such certificate would also have to bear the signatures of the two doctors to whom the case was referred and of the legal guardian of the patient who would, after a talk with the patient, certify that the consent of the patient was not obtained by force. It is only once that such a certificate is obtained that the doctor would be allowed to let the patient die.


           It may seem to be ambitious to try legislating and enforcing such a scheme but such safeguards are necessary. These are complicated issues and would require further extensive discussion. But one should not forget that in a country like India where there is tremendous pressure on the available medical facilities, euthanasia is all the more necessary for the maximum utilisation of the limited facilities.

** This article is a compilation of various information available on the subject. Readers are requested to read more on the topic for a more detailed understanding of the issue.