Wednesday, May 25, 2011

Bail or Jail? What should be the Rule?

Kanimozhi was sent to judicial custody by the Special Court Judge conducting trials related to the 2G Scam. Well, but why I should blog about that?! Isn’t the law taking its own course? Isn’t that I have always been against the kind of politics and corruption being represented by Kanimozhi and her party today? Didn’t I always want to see those who blatantly misused their powers punished? Yes..yes..yes.. But this is not just about Kanimozhi; but about some basic issues related to rule of law and human rights!!

Let me state that it is within the judicial prerogative of the Judge to reach such a decision not to grant bail and anyone who is aggrieved has the choice of appealing before a higher court against that decision. Also, I am a firm believer that one should not criticise a judicial decision but should avail the legally available remedial provision of appeal. However, certain other developments related to that decision is forcing me to visit this subject of Bail or Jail.

As I was following the reactions from Tweeples and TV Anchors (the current barometers of public opinion) I realised that there was some kind of a celebration about the jailing of Kanimozhi. One reporter even dared to ask her father about his feelings to which he got a very basic, prompt and apt reply that the father is feeling like any father whose daughter is jailed!

Lot of vocal Indians have developed an aversion towards the political class and are not willing to give even the slightest consideration to any politician. Under such circumstances, it is only foolish to expect any sympathy towards a person who is considered to be one of the masterminds behind the biggest scam that India has ever seen! Kanimozhi represents all that is wrong with Indian political system- a product of political dynasty, a beneficiary of political nepotism, an accused of political corruption..... So, it was only natural to expect the caustic and sometimes rude comments and reactions against her and in support of her judicial custody.

Even with all the above factors that are essentially justifiable, certain issues remain for our consideration. Like that famous Malayalam saying, ‘we should not burn down our house to kill a rat’! Are we falling into the trap of forsaking basic legal principles for the sake of our wish to see those high and mighty subjected to some punishment for their misdeeds?

The new Chief Minister of Tamilnadu Ms Jayalalitha, (who, incidentally, was herself subject to criminal proceedings not long ago and is still under trial) even gone to the extent of saying that it is wrong on the part of Kani to seek bail on the ground that she is a woman and her lawyers doesn’t know law, as they argued the same ground before the court! Well I am sure Amma will definitely know more about bail and jail, on a personal need basis, but I still feel concerned enough to analyse the issues on the basis of my little academic knowledge on these subjects.

It is useful to have a look at the relevant provisions of Section 437 of the Code of Criminal Procedure, 1973, (CrPC) which deals with Bails in the case of Non-bailable offences and even our courts and judges are bound by:

“437. When bail may be taken in case of non bailable offence:- (1) When any person accused of, or suspected of, the commission of any non-bailable offence is arrested or detained without warrant by an officer-in-charge of a police station or appears or is brought before a Court other than the High Court or Court of session, he may be released on bail, but-

(i) such person shall not be so released if there appears reasonable grounds for believing that he has been guilty of an offence punishable with death or imprisonment for life;

(ii) such person shall not be so released if such offence is a cognizable offence and he has been previously convicted of an offence punishable with death, imprisonment for life or imprisonment for seven years or more, or he had been previously convicted on two or more occasions of a non-bailable and cognizable offence:

Provided that the Court may direct that a person referred to in clause (1) of clause (ii) be released on bail if such person is under the age of sixteen years or is a woman or is sick or infirm:

Provided further that the Court may also direct that a person referred to in clause (ii) be released on bail if it is satisfied that it is just and proper so to do for any other special reason:

Provided also that the mere fact that an accused person may be required for being identified by witnesses during investigation shall not be sufficient ground for refusing to grant bail if he is otherwise entitled to be released on bail and gives an undertaking that he shall comply with such directions as may be given by the Court.”

I think the legal directive to the trial court judges is rather clear. If the accused is a woman release on bail is the preferred course, even in offences punishable with death or imprisonment for life.

Trial court has given two reasons for denying bail to Kanimozhi: (i) charge is of grave nature and (ii) she is in a position to influence witnesses. As for the first point, can an offence punishable with maximum of seven years be treated as graver than the offences punishable with death or life imprisonment, and the special consideration given to women denied to the accused?

As for the second ground, can such a generic position be justified in the eyes of law? Kanimozhi was never arrested by the investigating agency, obviously because they never found any reason to do so. She voluntarily appeared before the court and Investigator on summoning and never made any effort to escape the inquiry/trial. There are no known instances where she tried to influence any witness or tried to destroy evidence. More fundamentally, if influencing witnesses is a ground for denial of bail, should the court be arresting and keeping in custody all her family, including her father and brothers, each of whom are powerful enough to influence witnesses on her behalf? Rule of law demands equal treatment, irrespective of the status of accused!

Ensuring adequate evidence including proper witnesses is the duty of the State that charges the individual with an offence and that duty has to be discharged through the investigating agency. Shifting the burden on to the accused to ensure that witnesses are not influenced is like admitting the weakness of the case itself.

Indian Constitution guarantees personal freedom to all its citizens. The freedom should only be curtailed with proper reasons. The principles of natural justice demands every accused be treated as innocent until held guilty in a trial. As a corollary, only when the situation so warrants a person should be kept in custody and his/ her freedom curtailed.

Now let us consider the danger posed by adoption of Jail and not bail principle by trial courts. Firstly, it is easy for a government to accuse an opponent, political or otherwise, of a grave crime and to get him locked up in the jail for long periods. Criminal Trial will take place and subsequently he will get discharged but effectively the person can be kept out of public interaction for convenient periods!

Secondly, if a person is accused of offences and he is sure that he will be send to custody just because he is powerful enough to influence witnesses, then the possibility of his running away from the trial increases substantially. We have the example of people like Lalit Modi escaping and not even submitting to the investigation! It is only the faith in a fair trial that will ensure the presence of the accused in trials.

Finally before I end, let Kanimozhi stay in Tihar Jail for months, for all I care. But remember, if with all her reach and powerful family, she has to undergo an unfair custody and denial of bail, what about us the so called commoners? Who will ever save us, but for the well established legal principles and rules of natural Justice?

Sunday, May 22, 2011

The Danger of Rash and Hasty Investigations

Almost unnoticed by main stream media, the Supreme Court of India, pronounced its judgement in the case of Satyavir Singh Rathi Vs State through CBI, on 02 May 2011. Considering the importance of the crime underlying that case, media’s near silence was rather surprising. Or is it that the story has lost its power to attract readership/viewership? But I think that story needs to be told, for various reasons.

In recent times, with multi-crore scams tumbling out one after the other, people of India are increasingly adopting a liking for the vigilante kind of justice system. If we peruse the social media (and the TV debates), this demand for instant action and impatience with legal process is very much visible. Nobody wants to wait till investigations are conducted. As soon as the ‘Breaking News’ appears on any channel, people and media begin yet another round of ‘system bashing’ and demand immediate arrest and jailing of the accused. They don’t even spare those already condemned to death by courts- seeking their immediate hanging.

While I can understand some of the frustrations among people and the need for media to fan those frustrations, I am concerned about the long-term impact of these developments on our judicial system. Freedom of investigators is not something absolute- it has to be restricted by the rule of law and its procedures. Otherwise, we will end up with false encounters and kangaroo courts, by the time we ensure all our corrupt politicians are brought to book!

Coming back to the Satyavir Singh Rathi case- it is not likely that any of us who were aware of the facts of the case at the time of its happening might have forgotten it. On 31st March 1997, at about 2.30 pm, a police team of 13 armed officials headed by ACP Sathyavir Singh Rathi surrounded a Maruti Esteem car that stopped at a signal towards Barakambha Road in Connaught Place, Delhi, and shot dead two of the occupants of the car on the spot and critically injured the third passenger. Police gave out the version that they stopped the car as they had information that a notorious criminal carrying a price on his head was travelling in the car, they shot at the car in self defence when they were fired upon by the occupants; and that they had recovered a 7.65 mm pistol that was used to fire at the police party.

However, it did not take much time for the details to emerge. The incident was a case of mistaken identity, gross negligence and callousness on the part of the police. Police on receipt of information, that a criminal named Mohd. Yaseen, was visiting the area had identified one of the occupants of the car, Jagjit Singh who was a Sikh with no turban but a trimmed beard, as the said Mohd. Yaseen. Though they had Yaseen’s photo in their hand and ample time and opportunity to verify the identity the person, they did not do so. Instead, they stopped the car and shot down the occupants, who were nothing but a local businessman and his two visitors, without any provocation whatsoever. Further, as per the investigation of CBI (which was instituted only after public pressure as the Delhi Police was doing everything possible to save their own personnel involved in the case) it was also proved that the 7.65 mm pistol was only a subsequent plant by the police to corroborate their self-defence theory, after they understood the grave error they committed.

The trial went through the normal process. The accused policemen maintained their defence mainly of the theory that it was an action in self defence. The accused (except those who were not prosecuted for lack of evidence on their direct involvement in the shooting) were sentenced for murder, by the trial court and the same upheld by High court. In the special leave appeal, the Apex Court issued its final verdict, upholding the sentence to each of the accused. The Court held that “The possibility of a hefty cash reward and accelerated promotion acted as a catalyst and spurred the police party to rash and hasty action”.

While justice is done in this case the fate of various similar cases are still to be decided. Police have, time and again, been found to use highhandedness in dealing with investigations or otherwise, as is evident from the number of false encounters that got reported. Eliminating a suspect, even on flimsy reasons, for hefty cash reward and accelerated promotion or even to meet the public pressure or appreciation of their political masters, is rampant. So is the third degree methods used for obtaining information and collecting evidence from the accused.

If anybody has any doubt about the effectiveness of the extra-constitutional methods of police to cause miscarriage of justice and to crucify innocents, I suggest they read the two books named, ‘The Confession” and “The Innocent Man” by John Grisham. It would show how these things are rampant even in advanced countries such a USA.

Unless the society is vigilant and the police are subjected to strict procedural controls, the medicine can easily cause more damage than the disease itself! Let Police exercise their enormous powers completely subject to the majesty of law, so that you and I do not end up as victims of their eagerness for hefty cash rewards and accelerated promotions. Once standards are deviated it would take a long time to bring them back into practise. Remember, the atrocities of Emergency? Let us not sacrifice human rights in our quest to bring the corrupt politicians to book. Let us not make them the cause for even more serious damage than what they have already caused to our nation!

Thursday, May 19, 2011

Acquisition and Conversion of Agricultural Lands – Need for a National Policy

I am rather forced to continue with my theme of ‘Dealing with Public Unrest’ and ‘Redressal of Public Grievances’, by the events unfolding around us!

There are many agitations either already taking place or being contemplated around the country, against ‘forced’ acquisition of land for major projects. Most of these agitations are against acquisition on farmlands and the loss of livelihood of the farmers. It is becoming a pattern to mar any new project that requires large chunk of land, thereby hindering the accelerated development of the country and its economy.

Look at the major conflicts that are in various stages around the country: Narmada in Gujarat and Singur- Nandigram in West Bengal are well chronicled. Greater Noida is still simmering; with news of gross State sponsored atrocities against agitating farmers/villagers making rounds (while I am tempted to deal with Rahul Gandhi’s allegations and the response of other political dispensations thereto in detail, I will restrict myself to the subject at hand). Bhavnagar in Gujarat just succeeded in thwarting a cement plant in their area and is now on the war path against a proposed nuclear project. Orissa Government’s acquisition of land for Posco Project is being challenged by locals and human rights groups. In Maharashtra, land is being used as a tool in the fight against the proposed Jaitapur nuclear power plant.

If we look at all these agitations, we can see that the displaced farmers are holding genuine grievances against the governments and various political parties (even extremists groups in some cases) are successfully channelizing these grievances into movements against current governments. While it may be profitable in the short-run for these political groups to enhance their political capital through mass movements, these agitations (often violent) are definitely not in the interest of our nation.

Genesis of the problem

Agriculture makes highest contribution to India’s GDP, at about 18%. Agriculture also contributes to 60% of the employment opportunities for Indian labour. With nearly 60% of the land already being used for agriculture, there is not much scope for any increase or developing alternate land for agriculture in India. It is also a fact that what is being produced by Indian agriculture sector is not sufficient to meet the growing demand for food in India. Only way forward is, therefore, preservation of the existing farmlands and increasing the productivity.

But can we preserve the entire land currently being used for agriculture, as farmlands? The GDP share being merely 18%, agriculture alone cannot shoulder India’s economic development and growing need for employment. Increased industrialisation, infrastructure and power generation are crucial in the onward march of India towards its economic development. Therefore, diversion of agricultural land for other uses seems to be unavoidable!

Since the livelihood of vast majority of people on the one hand and the need of land for increasing industrialisation and infrastructure development on the other hand are seemingly conflicting with each other, it is imperative that we have a proper policy towards any acquisition and conversion of agricultural land for other purposes.

Central Government has renewed its commitment to amend the existing Land acquisition Act, which is an archaic piece of legislation. It has also promulgated a rehabilitation Policy in 2007, which obviously has not succeeded in meeting the aspirations of various stakeholders associated with acquisition or rehabilitation.

Way forward

Right to property, though not a fundamental right, is a recognised constitutional right of Indian citizens. However, like every other right, right to property is also not an absolute right, but subject to reasonable restrictions. Setting up of projects of national importance, in my opinion, provides enough ground for reasonable restriction on the right to hold property. Otherwise, we will not be able to move forward in the path of development. However, let us also recognise and respect the right of the farmers to their property and devise means to ensure protecting their interests in the event of unavoidable acquisition for any purpose.

Since the land acquisition for projects is a major issue threatening the society, we need to keep away our narrow political goals and come together to find a way out. Let us have a national debate on all aspects of land acquisition and land conversion, in a non-partisan manner, and devise fair policies that take into account interests of the all the concerned. This policy must also aim to reduce conversion of agricultural lands for any other use, to the extent possible, so that we can preserve this most important resource for the survival of humankind.

When the time demands proactive measures let us make it happen, instead of merely reacting to the agitations, or exploiting them for narrow political ends. Clarity in policy often serves to remove most of the grievances.

Wednesday, May 4, 2011

How to Save a Marriage?

“Marriages are made in heaven”- goes the old saying. What about divorces? They definitely can’t be made in heaven. Divorces do create hell!

According to the replies provided by various family Courts of Kerala, to an RTI inquiry, it has now been officially established that, on an average 500 marriages break down each day in Kerala. Remember, these 500 per day statistics indicate only those break downs that result in filing a divorce petition in a family court and not the numerous others that simmer just below the boiling point.

Kerala model of social development and its various aspects are much discussed subjects. However, not many studies have taken place to pinpoint the reasons for some of the peculiarities of Kerala, such as highest suicide rate in the country, increasing alcoholism, increasing divorce rate etc. For example, is the increasing migration and economic independence of Kerala women allowing them to take the decision to walk out of a marriage, when compared to their sisters elsewhere?

Be that as it may, my intention here is not a detailed study to connect various social factors for increasing divorce rates. I am only trying to collate some of my observations about the institution of marriage. After all, I have 14 years of personal experience and many more years of observational experience in this subject and if these observations can be of use to anyone, so be it.

I strongly believe marriage is an institution that was created, against the natural inclination of human beings, for the specific purpose of sustaining family and thereby ensuring order in the society. The very survival of future generations of humankind is dependent on the institution of family and that in turn survives on the basis of institution of marriage. Since marriage is a ‘forced upon institution’ it is necessary to have strong reasons and social sanctions to sustain it.

Let us look at the individuals’ perspective. Like I said, the natural inclination is promiscuous. They subject themselves to the bindings of marriage for various reasons, such as family and social pressures, economic reasons, security reasons etc. If the marriage fails to confirm to these very basic reasons, it is natural that the bond will break sometime soon unless that bond is reinforced through mutual understanding, mutual love etc. If both the partners are self sufficient to sustain themselves, the economic and security reasons wither away. If the society’s moral pressures on the individuals are reduced, that will further encourage individuals to walk out of a marriage.

Given that modern social developments are reducing the inter dependency of partners, and that is bound to affect the institution of marriage, we need to further the understanding among people about marriage and its realities so as to preserve the institution.

Let us look at the reality. Devoid of all its social roles, marriage is merely an understanding between two individuals to share their life; operative word being ‘share’. It is like any other contract; a process of give and take! If we enter into it with all the romantic ‘made in heaven’ notions, there are bound to be frustrations. It is not easy for individuals to ‘share’ their lives. It involves giving up a lot, including often cherished freedoms. If one expects the partner to do all the understanding and all the giving up, marriage won’t succeed; one has to be prepared to reciprocate.

When two people decide to share their lives, communication is very important. Instead of simmering with feelings of having short-changed, it is important to communicate one’s expectations and frustrations in a healthy manner, before the ego takes control of the situation. If necessary, third party intervention through expert counselling can be availed to repair any damage in the communication process. It is a fact that most of the couples who are likely to undergo counselling as part of their divorce proceedings do not consider it necessary to undergo the same, before they decide to meet in the family court!

My advice to all the married or soon to be married individuals is that please treat your marriage as ‘made here in earth’. It is a contract, like any other contract, that involves mutual rights and liabilities and mutual considerations. Treat every right or liability in the light of the contract and the other party’s rights and liabilities. Remember, your partner has only agreed to marry you and not to give up his/her life. Whenever issues arise in the contract (bound to happen as in most other contracts), use communication as the most effective tool to resolve it. If you are unable to do so through mutual communication, do not hesitate to invoke the third party intervention; not by your interested parents but by an uninterested expert counsellor.

Marriage has nothing to do with heaven. Love is only a by-product and not the basis of marriage. Basis of marriage is give and take in the form of adjustments and therefore, be ready to give at least as much as you are wanting to take; and more when your children’s healthy growth and development is dependent on the success of your marriage. That realisation will help most individuals to make their marriage a success. Once you make it work, love will soon follow.

Remember, your children did not choose you; you chose them and therefore never fail them!!

Sunday, May 1, 2011

Redressal of Public Grievances

Some weeks back, I wrote on the subject of dealing with public unrest

I was disturbed by increasing use of violence as a means for redressal of perceived /real grievances, by various groups across the country. I started by saying that India may not see a jasmine revolution. However, since then India did see something very close to Jasmine revolution (at least in the eyes of some of the Indiana) in Anna Hazare’s movement.

Anna Hazare’s movement did not invoke physical violence, unless we consider hunger strike also a form of violence albeit against one’s own body. Instead, it used the method of moral violence by forcing the government to accept their demands, not on the basis of debates and reasoning but on the basis of a threat of hunger strike till death, knowing very well that the government is not in a position to face that!

Without going into the morality of any form of violence as a means of grievance redressal, I would like to look at causes and possible solutions to the violence itself.

To put it simply, there is a void in public grievance redressal mechanisms that are forcing people to take up violence. There are some executive initiatives such as Directorate of Public Grievances which are very limited in their scope. Taking up issues through elected representatives is also of limited use as these representatives are bound by their party lines and therefore can’t actively take up public’s causes against their party’s stands.

As usual in our system, when nothing else worked, judiciary came up with a solution- the Public Interest Litigations (PIL). PILs proved very effective in the initial stages. However, like many other initiatives, it was not very long before PILs also started being misused by unscrupulous persons to further their narrow agenda. Also, the increasing trend of PILs started taking up time of the higher judiciary, affecting their primary function of deciding disputes.

We need to establish a very credible and effective mechanism to deal with public grievances; something similar to an Ombudsman; with highest level of credibility (the “Authority”). Citizens should be able to bring their grievances that affect public at large authority, at the least cost, and get time bound decisions thereon. This authority should have powers similar to High Courts and their decisions should be appealable only to Supreme Court. The Authority should have the power to call for and receive evidence from any experts in the field of subject matter of the grievance.

Any public actions such as strikes, hartals, satygraha etc on a matter covered by this Authority should be declared illegal and the persons leading/organising such actions must be held responsible for any act or omissions of all the participants thereto, if these acts or omissions violates any laws of the country.

To illustrate with an example, let us take the instance of agitation against the proposed Jaitapur Nuclear station. There is no doubt that the proposed Station is the interest of the nation. There is also no doubt that there are genuine grievances of the villagers who will be displaced for the project and other people at large.

Instead of the current violent methods being used by both the agitators and the State, matter should be referred to the Authority, who should constitute a Bench, to hear the matter on a day to day basis, with the objective of reconciling the conflicting demands of all the parties. The Authority alone should have the right to stop the project till its final orders. Once the Authority gives its orders, (which should be a speaking order) aggrieved parties may appeal to the Supreme Court and subject to the appeal, the order becomes binding on all.

This proposal may seem to be seeking yet another Authority! But I guess we have no option but to have a proper independent and empowered authority to deal with public grievances so that the social and political atmosphere remain peaceful and public issues does not flare up to the level of affecting the human rights of the citizens, including their right to earn livelihood.