Legal Drift

LAW NOT ONLY FOR LAWYERS BUT FOR THE LAYMAN

Legal Mirror

Legal Mirror 

Being a child witness is not a child’s play

meghna 2 Comments , , , , , , , , , ,

Introduction

With their father serving a life imprisonment sentence for murdering their mother, the future of seven children is now at risk with no one left to take care of them. The Delhi trial court recently convicted 40-year-old Amruddin for the murder of his wife Rihana and sentenced him to life imprisonment after relying on the testimony of his children. Rihana’s mother recently approached the court to seek help as she is financially incapable to take care of the children. Several organizations have stepped forward to help the family but the circumstances remain much the same.

The case dealt with the sensitive issue of child witnesses. The court affirmed the view that even “a child of tender age can be allowed to testify if he has intellectual capacity to understand questions and give rational answers thereto.”

Law as to Competency of Child Witnesses

Witnesses form an integral part of criminal justice system. They shed light on various events and circumstances which help the court to reach a conclusive finding beyond reasonable doubt. The Indian Evidence Act, 1872 does not prescribe any particular age as a determinative factor to treat a witness to be a competent one.The penal rule that exempts a minor from culpability in any crime due to lack of sufficient intelligence is not applicable in law of evidence relating to competency of witnesses.

The section 118 of the Act states that all persons (including minors and lunatics) are competent to testify, if the court considers them fit to do the same. Hence, even a child is competent witness but the court must satisfy itself that the witness understands the questions and is able to give rational account of what he has seen, heard or done on a particular occasion.

Rationale behind allowing minors as witnesses

Unfortunately, children become prime witnesses in a plethora of cases involving sensitive issues like child abuse, domestic violence, murders, sexual offences amongst others. If a statutory age limit is imposed by the legislature it would certainly act as deterrent in the delivery and administration of justice. Allowing child witnesses to testify is a positive step taken both by the judiciary and the legislature.

Since a minor can be easily tutored or influenced the courts must scrutinize his/her testimony carefully. Usually the question whether the child witness possesses sufficient intelligence is to be adjudged by the trial judge who notices his manners, his apparent possession or lack of intelligence. But a Superior Court after analyzing the records may rule otherwise; if it has sufficient reason to believe that the previous finding was erroneous.

Precautions to be taken by Courts

1. The Courts must carefully scrutinize the testimony. Corroboration of testimony by some additional evidence is usually preferred by courts.

2. Questions must be asked by the judge to determine the intellectual capacity of the child. In English Courts judges generally as ask a popular question “Is the color of my hair green”.

3. The courts must consider the evidence of a child witness and credibility thereof in the light of the facts and circumstances of each case.

Thus, the Court while assessing the evidence of a child witness must ensure that the witness is reliable and his/her demeanor is like any other competent witness and there is no likelihood of being tutored.

Conclusion

Although law relating to child witnesses is just and reasonable but the courts must take extra precaution in such cases. Special witness protection schemes must be initiated by the government to protect these children. In cases involving sexual offences in-camera trial must be made mandatory. The identity and secure position of the children should not be disclosed in public.

Instead of recording statements in adverse environment of the court, adequate arrangements should be made to ensure that such testimonies are made in comfortable surroundings. The defense should not be permitted to ask aggressive or improper questions during the cross examination. Such trials should be conducted privately. Involvement of media should be restricted. The courts must allow the presence of an advocate or a family member while the child is giving evidence.

Above all the privacy and security of the child at all stages of trial should be one of the primary concerns of the court. It takes courage to speak the truth; for a child to testify against his own father it takes more than just courage. What happens to the children who testify against their sole surviving parents? Do we have adequate child welfare schemes to protect these children? Is a collaborative approach between the legislature and the judiciary required to deal with such cases?

Clearly, leaving these children as victims of fate is not a solution. We need to frame policies and rules that protect these children from the successive psychological and financial set-back. These children often face social stratification and lack of family support. The plight of these children needs to be addressed both by the government and the society. They should be treated as victims and not just witnesses. We must work for their better future, a future which is free from the world of crime, hatred and poverty.

Justice is not just to do what seems to be fair but it is the administration of fairness in all aspects.

Read more
Legal Mirror Social Issues 

The Victims who are labelled as Criminals: the plight of Denotified Tribes in India

meghna 2 Comments , , , , , , , , , , , , , ,

Imagine without any fault of yours; you and your family were asked to register their names with the police. Now let’s say this penalty is extended to your whole community in perpetuity. Offended? You are right, in normal circumstances this can never happen to anyone of us but if it does we can always approach the courts. But there are some people who can’t as their fundamental rights have been encroached by a draconian British Law for centuries.

Denotified Tribes In India

Numerous tribes find their home in India. The plight of about 150 Indian tribes started way back in 1871 when the British decided to pass an Act against them. Under the Criminal Tribes Act, 1871 registration of all members of notified ‘tribes’ and eunuchs (irrespective of their criminal precedents) was made compulsory. Moreover, their movements were restricted. Penalties were further increased in the subsequent amendments to the Act. The act gave wide discretionary powers to the local government to decide which tribes should be notified as ‘criminal’.

Intentions of the British These tribes were labeled as criminal because they acted against the will of the British Government. The British who were unaware of the nomadic culture in India considered the tribal practices as barbaric and uncivilized. The tribes did not acquiesce to the unjust forest laws framed by the English. They continued to derive their livelihood from the woods and were thus named as “robbers and thief’s” by the state. The English believed that criminal characteristics could be inherited from one generation to other. Hence, the penalty was imposed in perpetuity. The commission of crime was no longer a criterion for punishment; birth in a particular tribe was sufficient to constitute an offence.

Situation after Independence

In 1952, the Act was finally repealed by the government and about 2,300,000 tribals were decriminalized. However, the Act was replaced by the Habitual Offenders Act, 1959 and Prevention of Anti Social Activity Act (PASA). The Act deals with the habitual (felony) criminals as those who pose a threat to the country.

Certainly, the Habitual Criminals Act is an oppressive piece of legislation often used by police and policy makers against the tribal. The Act empowers the police to question the members of the denotified tribes. The members of the denotified tribes are often socially ostracized and excluded from participating in census and other democractic procedures. The present act gives the legislators an opportunity to enact punitive laws against the tribes. Most new laws including forest conservation, wildlife protection, anti-beggary and cruelty to animal have been enacted to oppress them in one form or the other.

For centuries these tribes have been mentioned as “branded criminals” by everyone. The general acceptance among the people that these tribes have “criminal tendencies” has worsened the situation. The police often misuses it powers by harassing their woman. At times, the tribal men are arrested for various offences without any proof. Moreover, they are continuously targeted and labeled as criminals by the upper hindu castes of the society.

Lack of awareness and education has kept them away from political arena. Tribes like Kurava, Bawaries, Paridhis and Sansis are still treated as criminals by the society. These tribes not only find it difficult to make a decent living but are also constantly targeted by the police as prime suspects of crime.

Conclusion

We generally quote “Hate the Crime and not the Criminal” but the same is difficult to implement as complete segregation of the offender from the offence is impossible. However in this case; a person (male, women, child or eunuch) is targeted because he or she belongs to a certain clan. Isn’t the system promoting racial discrimination? Ironically, young police candidates are taught about these tribes in their police training. The judges in their areas see them as offenders too. Their genuine complaints are not registered. They live under a constant fear that they might be booked under a crime never committed by them.

Aren’t we depriving them the right to live with dignity (Article 21)? Aren’t we forcing them to be criminals? The answers of all above questions are in affirmative.

If we claim to be a civilized society we need to act as one too. The Habitual Offenders Act must be repealed. Moreover, these tribes must be offered alternative employments by utilizing their knowledge in the tourism, agricultural and ayurvedic industries. Spreading of education and awareness regarding their constitutional rights must be done. Most importantly, the police should be made more sympathetic towards these tribes.

Even being citizens of India they do not own any Voter ID cards, Birth or Death Certificates and other necessary documents. Entitlement to all these documents would pressurize the government to take necessary steps for their empowerment.

Above all the people should raise their voices against the injustice done to these people. Their voices remain unheard on every stage of judicial proceeding. These people are presumed guilty by almost everyone. If nothing is done soon we would have insurgents in the country; who would have taken up arms because of our ignorance.

Read more
Economy Legal Mirror Politics Social Issues 

You might Not be the Owner of the Land Registered in your Name – The Land Acquisition Act says so

meghna 5 Comments , , , , , , , , , , , , , ,

Do you know a 100 year old Act may deprive you of your property in a couple of days?

The Land Acquisition Act, 1894 gives considerable power to the government to to acquire any land for “public purposes”. The Act is being misused by both State and Central governments to acquire multitude of lands specially in the rural areas in the illusion of development and urbanization.

Purpose of the Act

Acquisition of land was a primary requirement of the British in order to carry out some of their most ambitious projects such as railways, rural planning and development, construction of public offices, building establishments required by corporations and providing residence to the poor. Thus they enacted a draconian piece of legislation known as the Land Acquisition Act, 1894.

Features of the Act

1. After the amendment of 1984, the act applies to whole of the country except the state of Jammu and Kashmir. Prior to this amendment; Rajasthan, Nagaland, Kerala and J&K had similar but separate land acquisition Acts.

2. The government may also acquire land under other certain acts such as Coal Bearing Act, Forests Act, Slum Areas Act, Delhi Development Act and Maharashtra Industrial Development Act.

Procedure under the Act

1. The government through publication notifies that the land in a particular locality is needed or may be needed for a public purpose or for a company. S. 4(1).

2. Authorized officers ascertain whether the said land is suitable for the purpose in view S. 4 (2).

3. Persons interested in the property may file their objections which would be enquired by Collector. S. 5-A.

4. Declaration and publication of intended acquisition by Government. S 6

5. The land is to be marked, measured and planned under the supervision of the Collector. Sections 7 & 8.

6. Issuance of public and individual notices to interested persons who may file their claims for compensation. S. 9.

7. Claims are to be enquired by the Collector. S. 11

8. Collector to award adequate compensation which would be awarded after the possession of land by the collector. Present Scenario The Act was heavily amended in 1984 by the Central Government. On one hand, amendment made provisions for efficient and adequate compensation but on the other it widened the scope of Sec.17 of the Act which deals with acquisition of land by companies. It is easier for government companies to acquire land vis-a-vis private enterprises.

The governments have always construed “public purposes” in liberal sense. They have succeeded in classifying any acquisition of land as being in public interest. With the emergence of SEZs and public-private partnerships eminent domain is being abused on a vast scale.

Unfortunately, the people who loose their lands have never been reasonably compensated. They are generally poor and uneducated and have no means to fight their cause. Ironically, the cost of development is borne by people who can hardly afford it.

Instances

1. Tata Nano Project:- After the protests Tata shifted its Nano Plant to Gujarat. But it still holds the lease of the disputed land for another 99 years.

2. Sanand The fertile land in Gujarat is being acquired to make space for the small wonder Nano. The government has already taken 5000 acres of land under its control.

3. Posco The iron-mining project has been delayed for 5 years as the farmers in Orissa are reluctant to surrender their fertile lands. Most of them have been killed or injured during the protests.

4. Reliance SEZ The Supreme Court rejected its special leave petition of Reliance to seek a stay order for land acquisition in Raigad, Maharashtra. However, it was able to acquire 1,150 Hectares of land near Navi Mumbai to accomplish its industrial and residential plans.

5. Arcelor Mittal Thousands of villagers of Jharkhand have contended that the government is selling land of tribals to non-tribals which violates the Chotanagpur Tenancy Act.

Deficient Bills

The government intends to amend the Act. The pending bills propose a number of changes such as re-defining ‘public purpose’; reduction in acquisition of land by private parties; formulation for Social Impact Assessment and establishment of National Rehabilitation Commission.

Although all references to companies have been deleted in the Amendment Bill, 2007; the new definition of “public purpose” includes acquisition for “a person” (Company is regarded as a person in law). The Rehabilitation Bill also has a number of flaws. The language of the bill gives discretionary powers to the government. The bill doesn’t impose only sanction on non-compliance of its laws. Conclusion

In India land is equity. People spend their entire life-savings to purchase a small piece land or any land for sale. Land resources are required by nations to progress. But at what cost? U.S.A and other countries follow a relatively more transparent procedure than India.

The powers of the government need to be restrained. The farmers should be given economic rights in their lands. If they are deprived of their lands, they must be recognized as stakeholders in the projects. Alternatively acquisition of land for commercial purposes must be discouraged. The Act must be abrogated and replaced by a new transparent legislation which sympathetic towards the land owners.

“The act empowers the government to transform an owner into a landless laborer overnight.”

I dedicate the post to my father Mr. A.K. Agarwal, who not only suggested the topic but also helped in research.

Read more
Corporates Legal Mirror 

Why a business tycoon killed his own driver?

meghna 4 Comments , , , , , , , , , , , , , , , , , , , ,

“If I speak the truth, I will not live.”  were the last few words spoken by Janeshwar Sharma in a television interview. The deceased was working as a driver of the affluent business tycoon Anil Nanda.

In his interview, he alleged that Anil Nanda, his partner Jitendra Pandey and Manager Dhiraj Balani were involved in a sex scandal. He claimed that Nanda paid some boys to have sex with him at one his houses in the Friends Colony, Delhi. He also sexually exploited his employees at the said house. If the employees resisted the homosexual demands of Nanda, they had to face adverse consequences. He further claimed that he was also asked to spy on Nanda’s partner Vijay Sinha, on his opposition he was threatened by the accused.

“Janeshwar had opposed Nanda’s attempts to get physical and was, therefore, in his bad books. Once, he had caught Nanda in a compromising position with a male partner. Fearing that Janeshwar would disclose this to others, Nanda had begun hatching a conspiracy to kill him,” the victim’s younger brother, Yogesh Sharma, said.

Who is Anil Nanda?

Anil Nanda is the chairman of the Akme Projects and is the son of former Escorts group chairman HP Nanda. He is unmarried but his brother Rajan Nanda is married to Raj Kapoor’s daughter Ritu and their son is married to Amitabh Bachchan’s daughter Shweta.

Murder

Sharma was set on fire in morning of June 9 by some unidentified persons at Anil Nanda’s  residence. The attackers had thrown petrol over him before setting him on fire. He was admitted in hospital with 80% burn injuries. It is noteworthy that the doctor declared him fit for statement. But the police did not record his statement in spite of  repeated requests by the victim and his family.

Sharma’s brother alleged that on June 13 Nanda visited and threatened the victim in the hospital. Later Sharma succumbed to injuries on June 14.

Police Investigation

The conduct of Delhi police is questionable and disappointing.

1. The police didn’t record Sharma’s statement even when the doctor declared him fit for the same.

2. Sharma survived the injuries over a week but the police didn’t bother to record his statements.

3. Police didn’t question Anil Nanda until victim’s dying declaration was shown on television.

4. The police theory suggests that “a stranger” might be involved in the given case.

5. It also claims that Janeshwar was “alone” at the time of incident, indicating that it might be a suicide. It said that it had questioned 20 people who were near-by at the time of incident but no one saw Janeshwar being set on fire.

6. The police said that it would investigate why the CCTV camera’s didn’t work on the day of incident.

7. It has graciously agreed to investigate the call records of the people involved in the murder.

8. The police did not make any arrests saying that the victim had not mentioned any names in his first complaint.

9. It initially filled a case under 307 and then subsequently filled a fresh case under section 302.

10. At first, it ignored the letters written by the victim before his death “alleging threat to his life”.

11. There was delay in collection of forensic evidence from the place of crime.

12.  Although it is established that Nanda was present at his residence when the incident took place. Police is busy protecting the three saying that they were not present at the spot where Sharma was set alight.

Laws

Dying Declaration is based on the principle of “nemo moriturus proesumitur mentiri” a man will not meet his maker with a lie in his mouth.

Eventhough the court gives great value to the dying declaration, the court must have full confidence in the veracity and correctness of the statement. It is made by a dying person as to the cause of his death or as to any circumstances of the transaction that resulted in his death. It is an evidence under Section 32 of Indian Evidence Act,1872.

Conclusion

The case involves two aspects “dying declaration of a driver who alleged that he has attacked by his employers” and the involvement of Nanda in homosexual activities with young boys and his employees. If the former is proved than the latter would also hold water. Considering this, Nanda could be tried under Section 377 of IPC for the alleged carnal intercourse.

Since Sharma’s dying declaration was not recorded by the police, there lies a high probability of manipulation and misappropriation of evidences in the current case. Moreover, the court may doubt the veracity of the statements made by the victim on television. The F.I.R doesn’t mention names of any of the three accused and it would be very difficult to prosecute them. The police deliberately ignored the repeated complaints of the victim and his brother.

Yogesh (Victim’s brother) has still not been given police protection. The intentional abstention by the police to conduct a fair inquiry is highly disappointing. The case has been lost before the verdict. It would be either closed (as the culprits would not be found) or it would be proved as a suicide. Due to lack of evidences the courts might rule in favour of the “influential people”.

The case needs to be investigated and the truth must be established. But the present circumstances reveal that police is not even willing to consider Nanda a suspect.

Why do we need criminals when we have such efficient and honest police force?

The post is dedicated to one of our readers Mr Vinay Kakkar who suggested this topic in one of his comments.

Read more
Legal Mirror Politics Social Issues 

India’s Cruel Torture Bill

meghna 9 Comments , , , , , , , , , , , , , , , ,

Statistics

1. Every year number of custodial deaths increase considerably.

2.  From 1994-2008; 16,886 custodial deaths were recorded.

3.  In 2007-08; 188 and 1789  people died in police and  judicial custody respectively.

Definition of Torture

Article 1 of United Nations Convention against torture, 1984 defines torture as:-

Any act by which public officials intentionally  inflict severe pain or suffering ( physical or mental) to a person for fullfiling certain purposes like seeking information or a confession, punishment, intimidation or discrimination of the victim.

Indian Position

India signed the UN Convention against torture in 1997 but did not ratify it. Ratification is a process through which countries implement an international convention through a domestic legislation. The government recently decided to table Prevention of Torture Bill 2010 to address the issue. However the bill stands flawed on various grounds.

Definition

The  Bill defines torture in a  limited sense. It states that if a public official  intentionally does an act to seek information or confession from a person by inflicting

(i) grievous hurt to any person; or

(ii) danger to life, limb or health (whether mental or physical) of any person it would amount to torture.

Hence if a harm is inflicted on a person intentionally by a public official to seek information only then it would constitute torture.

The definition not only ignores other purposes of torture like punishment and intimidation but also  makes infliction of grievous hurt or danger to life a necessary condition. Nevertheless, torture sometimes  include abuses like sleep and food deprivation, forceful positions and exposure to intense and continuous noise which are outside the ambit of physical harm or danger.

Further, Section 4 states that intentional infliction of grievous hurt must be coupled with animosity against a group in order to establish the crime of torture. Thus, if  a public official  inflicts grievous hurt on a person to extract information he would not be liable  unless it is proved that he had animosity against a group or community to which the person belonged.

Defects :-

Section 6 states that a prior government sanction is required in order to prosecute a government servant. The section leaves wide scope for partiality and manipulation. A government may be biased towards its own employee. Also, it would be difficult for the victims to obtain such sanctions.

Moreover the limitation clause in Section 5 states that a complaint must be registered within 6 months of alleged torture but fails to recognize that sometimes the victims are subjected to prolonged torture which may last more than the specified period.

There is no provision with regard to self- incrimination. The bill remains silent on the scheme of compensation and thus relies on courts to decide the amount of compensation is such cases. No appropriate review mechanisms to check interrogation practices are established under the bill. There is no provision to provide immediate legal help to those who have been arrested.

The convention states that no country must extradite a prisoner to another nation which has harsher laws than that prevalent in it. The bill fails to recognize this clause of the convention and remains silent on the issue.

Recommendations

1. The definition of torture must be revised to include other purposes of torture like intimidation, coercion, punishment or discrimination.

2. Compensation Schemes must be enumerated in the bill.

3. Proper review mechanisms for interrogation must be established.

4.Clauses like procurement of  prior governmental sanction and  limited time period to file complaints must be removed.

5 A prohibition on the expulsion, return or extradition of persons to States where there are substantial grounds to believe those persons will face torture or cruel, inhuman or degrading treatment must be added.

6. Immediate legal aid must be provided to the arrested.

7. Other forms of torture which may not necessarily be physical in nature must be included in the definition.

Conclusion

It is unfortunate that after lapse of 13 years the government has come up with an inefficient piece of legislation which doesn’t even recognize the International Convention which was signed by India. The restrictive clauses in the bill would  help the perpetrators rather than assisting the victims. The bill must be reviewed carefully and necessary changes must be incorporated.

In the present form the bill is a license to torture rather than a prohibition to inflict harm.

Read more
Legal Mirror World 

Married in India but Divorced in US

meghna 7 Comments , , , , , , , , , , , , , , ,

Everyone celebrated their wedding. The groom was an NRI engineer settled in Boston who came to Punjab to marry Manjeet, a beautiful village girl. No one had ever anticipated that this fairy tale would turn into a nightmare until the groom decided to abandon Manjeet and marry again.

He obtained a divorce decree in US. Subsequently, Manjeet filled a petition in an Indian Court. The court declared the divorce null and void although it hardly had jurisdiction over the foreign decree. Now, her husband is divorced in States but married in India.

According to NCW more than 50 women are facing the issue in Gujarat, Punjab and other parts of the country.

Problem

In such divorce cases the conflict of Private International Law becomes evident. Usually, one party obtains a divorce decree aboard which is not recognized in the Indian Courts on the ground that the foreign court had no jurisdiction over the matter. As a result the marriage is recognized in one country but annulled in the other. Such a person may be tried for Bigamy in India but in the other country he would not be considered guilty.

EX-PARTE JUDGEMENT:

An ex-parte divorce happens when only one spouse participates in the court proceedings.  In US, a state has the authority to determine the marital status of that person (who lives in that state) even if it does not have jurisdiction over the other spouse. Usually,the spouse who doesn’t live in the county where the divorce was filed would not be subject to its jurisdiction unless a status exception is present.

Many a times foreign courts grant ex-parte divorce decrees, with one party being unrepresented and thus unheard. Often the parties are unaware about these proceeding too. Due to various practical and financial difficulties; a party may not be able to contest the case. Generally, the wives deprived of maintenance and matrimonial property in these cases.

Read more
Judiciary Legal Mirror Social Issues 

Insight to Bhopal Gas Tragedy: A case lost before trial

meghna 6 Comments , , , , , , , , , , , , , , , , , , , , , , , , , , , ,

Almost everyone around the globe is aware of the catastrophe that happened in Bhopal but there are a very few people who actually know what were the legal lacunae involved in the Bhopal case. The battle was lost before the trial and the victims were betrayed at every step of legal proceedings.

The Battle in United States

At that time Indian Law had no provision of punitive damages to effectively deal with the Bhopal Gas Tragedy. The Government of India through an act appointed itself the sole representative of the victims for any legal course with Union Carbide with regard to compensation. The act empowered the government with the exclusive rights to represent and act on behalf of the survivors/victims of the gas leak. The corollary was that the victims could not seek legal redress of their own.

Consequently, the Government decided to approach the U.S. District Court to seek justice. The government justified its stand mainly on three grounds:-

The US courts could grant higher compensation as compared to the one likely to be granted by the Indian Courts. It believed that the parent multinational company Union Carbide could be tried effectively in US. The Indian Courts were incompetent to handle mass tort litigation.

Ironically the government ignored the operating principle in US according to which a suit could be maintainable in an American Court only in cases where the damages or injuries occur on American Soil, to American residents or the dependents of American residents. Alternatively, if the prosecution would have proved a design defect in the plant, the suit could have been entertained by the American Courts. But since it was established that the gas leak happened because of poor maintenance, the parent company was not held liable in the US courts.

US Court’s Decision

The US court ruled that UCIL was a separate entity, owned, managed and operated exclusively by Indian citizens in India. Carbide was ordered to submit to the jurisdiction of Indian Courts; nevertheless it could dispute the verdict rendered by the Indian Courts before its domicile courts. Initially the government of India had filled a suit claiming 3 billion Dollars which could have been achieved only through attachment of UCC’s assets in the US.

The Indian Mistakes

A significant order was passed by Justice Deo of Bhopal District court which directed UCC to pay Rs. 350 crores as interim relief. The order being  interim could not be decreed. And without a decree UC could and did refuse to pay it.

On February 14, 1989 the Supreme Court directed Union Carbide to pay up US $ 470 million in “full and final settlement” of all claims, rights, and liabilities arising out of the disaster in 1984. The victims and legal heirs of the dead, were not informed  before this settlement took place.

None of the courts ever directed UCC to reveal any epidemiological information that it had. It refused to render any toxicological information as it formed an integral part of its “trade secrets”. It denied that the gases released during the disaster could cause any adverse health effects in the victims. Moreover, UCC was never ordered to clear the toxic material present on the disaster site which it could have been under the “polluter pays” principle evolved in Oleum Gas Leak Case.

The SC refused to consider UCC liability as unquestionable and absolute. The principle of absolute liability was never evoked by the SC. According to this theory where an enterprise is engaged in a hazardous or inherently dangerous activity and an accident in such an operation results in the escape of a toxic gas, the enterprise is strictly and absolutely liable to compensate all those who are affected by the accident, and such liability is not subject to any of the exceptions under the rule of strict liability.

SECTION 304 TO 304(A)

Originally the charge sheet was filed under Section 304 of IPC i.e. culpable homicide not amounting to murder specially paragraph 2 which deals with the accused having the knowledge that the act would cause death. The charge sheet clearly stated that the UCC plant in Bhopal was deficient in safety and design measures. It further stated that the management was aware of these defects and their probable consequences but it failed to inform the district administration.  In 1996 the two judge SC bench held that the charges under Section 304 were not made out and the accused could only be charged under Section 304(A) for causing death by rash or negligent act. Justice Ahmadi while delivering the judgment observed,

“Even assuming that it was a defective plant and it was dealing with a very toxic and hazardous substance like MIC the mere act of storing such a material by the accused … could not even prima facie suggest that the concerned accused thereby had knowledge that they were likely to cause the death of human beings.”

Hence the diluted charges ensured that accused could now be awarded merely a maximum punishment of 2 years and not 10 years.

How was the UCC benefited?

The long trial benefited UCC in various ways. First of all, the fear of length prompted the government to enter into a swift settlement. Secondly, the adverse public pressure on the government also evaded with time. Lastly, UCC saved interest on the sum it finally had to pay.

Are we still left with a remedy?

1. A curative writ petition must be filed under article 32 r/w 142 of the Constitution to set aside the 1996 judgment; seeking the relief of a fresh trial under Section 304 Pt 2 of IPC.

2. An appeal to the sessions court under Section 377 of CrPc on ground of inadequacy of sentence because of lesser charge under Section 304 A IPC can also be filed.

3. Pursuing Extradition is significant for the effective trial of Warren Anderson.

4. Civil Liability of both the government and the UCC needs to be re-addressed. Cleaning of the affected area, proper medical treatment of the victims and distribution of compensation are some of the vital steps that need to be taken.

Conclusion

Bhopal Gas Tragedy is aptly referred to as the night that never ended. The long legal battle benefited none but the accused. The victims were continuously victimized by the fluctuating judgments rendered in the country. The media, bar, bench, authorities, central and state governments all failed to effectively fulfill their responsibilities.

“The greatest disaster in India was not on day of Bhopal Gas Tragedy but on the occasion, when we failed to protect our own countrymen and decided to sell the living dead to a multinational for some dollars.”

Read more
Legal Mirror Social Issues World 

Male Rapes – Some Myths, Statistics, True Incidents and Legal Insight

meghna 1 Comment , , , , , , , , , , , , , , , , , , , , , , , ,

A True Story

Is Rape attempted only on females? I would request you to think again. Male rapes are not fiction created in novels and movies. What happened in Shawshank Redemption can happen to anyone at any place.

Shikhar (name changed) was popular at his college for being a philanderer. He had multiple girlfriends and at age of 22, he had everything a student could aspire for. He shared his room with two of his classmates. His relations with them were not cordial. He had some unresolved issues with them. One night when he was sleeping, he realized that his room mates were tying him to the bed. He was repeatedly raped (sodomised) by both of them that night.

The incident changed Shikhar’s life completely. Even after two years, he hasn’t dated any girl or talked about sex with his friends. The very talk of sex upsets him. He also tried attempting suicide once to get rid of miserable life. Only two of his friends were aware of what happened to him that night, but even they were unable to console him in this situation. Similar to other instances of male rapes, the matter went unreported.

Male Rapes: Some Shocking Statistics

About 10% of rape victims are men. Findings From the National Violence Against Women Survey, US points out that 71% of male victims were first raped before their 18th birthday; 16.6% were 18-24 years old, and 12.3% were 25 or older. U.S. Bureau of Justice Statistics (1999) estimated that 91% of rape victims are female and 9% are male Human Rights Watch Report suggests that 22% of male inmates have been raped at least once during their incarceration; i.e. around 420,000 prisoners each year.

History of Male Rapes

In some societies the victorious soldiers were given a right to rape the defeated enemy. The act demonstrated a total control over the defeated warrior. It was believed that whether consensual or forced a male who has carnal intercourse looses his manhood and is thus incapable of becoming a ruler or warrior. Gang Rapes of a male as a punishment was awarded for crimes like adultery in Rome and Violating the sanctity of Harems in Persia and Iran.

Who are the Victims?

Most of the people believe that males are victims of rapes only in jails, prisons and hostels but statistics reveal that these are not the only places where males get traumatized. A large number of males become victim of sexual assaults and forced sodomy in their own houses, pubs and armed forces.

The perpetrators avail the benefit of their victim’s vulnerable condition. A popular notion prevails that a male is supposed to protect himself and if he fails, he has lost his manhood. Like most of the rape victims, these victims start holding themselves responsible to the injustice done to them. The thought that “they have lost their manhood” results in their continuous victimization. Most of them start doubting themselves and may even fail to have healthy sexual lives with their spouses. A very few cases of male rapes are actually reported. The offense is considered difficult to prove and the perpetrators are often acquitted. Out of 852 cases that were reported to police in the UK, only 44 perpetrators were prosecuted. Ironically, the victim who confesses that he had been raped or sexually assaulted is punished by the entire society. The feeling of guilt and shame makes him detest himself and his very existence. The rape is not only committed on his body but also on his mind, soul and spirit.

Indian Penal Code and Male Rape

Section 377 of the Indian Penal Code is the only section that criminalized all acts of carnal intercourse. The section penalizes both consensual and forced sodomy. The minimum punishment awarded of such crimes 10 years which may extend to life imprisonment. The Delhi HC in its leading judgment of Naz Foundation v. Government of NCT and Ors stated that the provisions of Section 377 I.P.C will continue to govern non-consensual penile, non-vaginal sex and penile non-vaginal sex involving minors. Even if the judgment is upheld by the honorable SC, the section can be evoked to punish sodomists, pedophiles and zoophiles.

The only laws that remotely address to the problems of child assault in  the country are sections 376, 377 of Indian Penal Code and some sections  of the Information Technology Act, 2000.  But there is no specific law that can punish pedophiles or can compensate the victims of such events.

The Section 375 of Indian Penal Code does not include males as rape victims. Recently the government decided to amend the definition of rape and replace it with sexual assault instead. They believe that the amendment would give the section a wider jurisdiction and scope. But it is criticized that the proposed amendment would further harm the interests of the rape victims.

Conclusion

It is unfortunate that till now people associate manhood with sexuality. Manhood is not lost by a victim who was sodomized but it is lost rather it does not exist in the perpetrator who committed this heinous act.  It is a myth that only gay men commit such crimes. The offender can be bisexual, straight or homosexual. India definitely needs separate laws to deal with male rape or forced sodomy and child assault. Majority of such crimes remain unreported and therefore awareness must be spread in this regard. The benefits availed by female rape victims under the Cr.Pc must be also extended the male victims. Helplines and Online-help can be provided which may prove helpful in providing psychiatric help to them.

Ignoring Male Rapes won’t change anything but accepting it would surely make a difference.

Read more
Judiciary Social Issues 

Selling their bodies killing their souls: Plight of widows in Vrindavan and Mathura

meghna 10 Comments , , , , , , , , , , , , , , , , , , , , , , ,

Sati as a practice was not invented by Ancient Indian texts but by the greed of people. Most of the contemporary historians believe that the practice of Sati was encouraged to deprive the widows from the property of their deceased husbands. Family members (usually the surviving brothers of the deceased) cloaked their desires under the shadow of religion. Hinduism was used as a weapon to rightly ask for the lives of innocent widowed women. The women under societal pressure were made to self immolate themselves. This served twin purposes; the family was no longer entitled to maintain the widow and her sacrifice ensured that the share of her deceased husband would revert to the surviving members.

It is a privilege to state; the evil practice of Sati is no longer practiced in India. But at the same time it is a shame to admit that the condition of Hindu widows has turned worse with time. Even today most of the widows in the country are abounded from their houses. They have no place to go. They are unable to maintain themselves and thus are forced to take refuge under the Vidhwa ashrams.

Most of the ashrams in the country are situated in the holy cities of Vindravan and Mathura. It is estimated that Vrindavan has more than 4,000 temples and ashrams with about 2,957 widows living in them. The widows seek shelter in the ashrams for various reasons most of them being abounded or sexually abused by their family members believe that holy places like these would help them to attain salvation and would bring them nearer to god. Many regard Vrindavan as the only place where they can live and die peacefully with the protection of all mighty.

Unfortunately these ashrams do not have much to offer. Majority of the widows are seen begging on the streets or soliciting for earning their livelihood. Ashrams encourage practices of prostitution and sexual abuse to gauge funds and finance.  The young widows are often supplied to rich customers by the ashram itself in lieu of a heavy sum. The ashrams are scattered with diseases like tuberculosis, STD’s and dysentery. There is inadequate number of toilets in most of the places. There is lack of proper sewage system and non-availability of running water in these places. The widows are forced to live in an unhygienic and unhealthy environment. They are unaware of the widow pension and health schemes and hardly take benefit of it. Recently issued report by National Commission for Women states that 80% of them are illiterate whereas 60% of them are above 60 years of age. Most of these old widows (even those who are unable to walk properly) have to climb stairs to reach their rooms. Some of them are too old to even cook for themselves. They are forced to sleep on pieces of jute sacks. They are neither supplied with blankets nor hot water in winters. Moreover there is no institutional support for cremation of the dead bodies. The necessities in today’s life are a luxury for these unfortunate ones.

The PIL filed by advocate Mr. Ravindra Bana in the Supreme Court in November 2008 had brought the grievances of this marginalized section in limelight. Supreme Court had issued directions to NCW for conducting a survey in this regard. After much delay NCW has finally released its report on the plight of these widows. It is disheartening that in spite of various initiatives by the government hardly any benefit is availed by these women. The report said “As per records of the district welfare office, 2,819 women received old age pension and 892 widow pensions. However, among the 225 randomly interviewed women 68 per cent were found without pensions and 58 per cent without ration cards.”

The Sevadasi system (service done to the rich and powerful pilgrims are seen as a form of piety) prevalent in these institutions, further encourage practices of trafficking and prostitution. Under this system, the widows are supposed to offer every service to please the owners of Dharamshalas and Bhajan Ashrams in which sex is also included. The Bhajan ashrams offer these widows to earn Rs 3 to 4 a day and some meagre ration, if they assemble in the bhajan ashrams to sing bhajans (devotional songs) in mornings and evenings. The food, shelter and clothing of these destitute women depend on the mercy of these ashrams and some courteous travellers.

Most of the widows who reach these Bhajan ashrams belong to West Bengal and Bangladesh.  The government of U.P. and W.B. have failed to take any collaborative steps to improve the situation of these widows. The widow pension granted by U.P. government is Rs.1, 800 a year, or Rs.150 a month. Although on records it seems that this meagre amount is serving its purpose, in reality it is not. The shelter homes built by the government have only provided limited relief to them. The government has turned a blind eye towards the illegal practices observed in these ashrams. Deepa Mehta who directed ‘Water’, the film which through a fictional story depicted the miseries of the widows living in these ashrams had to face opposition from all sections of the society. The close nexus between politics and religious bigots has always proved dreadful. If the government actively opposes the practices in Vrindavan, it would face opposition from both public and religious leaders. Most of the widows being uneducated become vulnerable. The victims are scared to raise their voices against the Dharamshalas and Bhajan Ashrams as they know they have no other place to go. It is very important that the widows are made aware of their legal and constitutional rights. The pensions must be increased and should duly reach the beneficiaries. Some part of the tourism revenue earned from Mathura and Vrindavan must be utilized for the upliftment of these widows. The welfare legislations like Hindu Succession (Amendment 2005) Act and Maintenance and Welfare of Parents and Senior Citizens Act, 2007 have definitely ensured that widows are not deprived of their husband’s property. But unfortunately these widows are found unaffected by the legal developments around the country. They must be provided with vocational training. Psychological and medical help must be made available to them. Medical facilities and hygienic conditions must be ensured in these ashrams. The number of government shelter homes must be increased. Above all citizens must be made aware of the injustices done to this vulnerable section. A public pressure can indeed bring considerable changes in these places. I seriously think by selling the bodies of these pious women, the ashrams are killing their souls and somewhere I hold everyone of us responsible for this injustice.

Read more
Judiciary Media Social Issues 

Does justice look this monstrous?

wazhmafrogh 1 Comment , , , , , , , , , , , , , , ,

Whatever little bit of respect I had for some of the ‘mainstream’ media, is shrouded in agitation today. Almost every channel from one of the acclaimed ‘world-democracy’ flashed the news of ‘ Kasab sentenced to death – justice served’. It is of great misfortune that common brains are being fed with such contaminated views and disdain prevails in our thoughts and comprehensions. I do not want to get into the legal implications of the trial or the verdict and nor the sentence is of much of sensation as almost everyone knew the outcome of the trial. But the larger question seems to be that would we ever be able to see justice beyond injustices and retribution? While I agree that law enforcement has to fulfill its responsibilities to protect the citizens of a country, at the same time I think the civil society of a ‘democratic nation’ should deconstruct the given rhetoric that is made to believe as absolute legal truth and should shed light on the unseen and untold and at least attempt to free the incarcerated notions of justice.

Can justice be this monstrous? I do not think so. There are two debates, the former is the carnage instigated by the so called ‘terrorists’ on 26/11 in Mumbai and the latter is the debate on how to find solutions and solidify the concept of justice for the ones who suffered and the ones who will suffer. However, the enraged, disillusioned and infected brains seem to have sacrificed the latter over the politics of the former. I have to admit that I have no relationship with the person in question, but have huge stakes in how the concept of justice is formed and reformed through misdeeds of individual’s predatory acts. However, if we go beyond the individuals, we will be able to explore the bouts of mistrust, agony and contingent injustices that exist in systems and social spaces in which these individuals are socialized, poised and monopolized.

There is no doubt that we live in the times of increased contentions and violence among diverging agendas and politics, but we are tempted to victimize the victim rather than curbing the agenda and politics that create and recreate violence and culminate the end of humanity. I can never reconcile the two, that by sentencing a young victim, we will scare anyone else who would plan to do the same. Ironically, the same argument can be used by the fathers of terror to attract more young voices in avenge. Indeed, some of our experiences in Afghanistan reveal that militants have been able to gin up support from youth when the youth were emotionally provoked after seeing the injustices and violence of the government systems and their allies.

I could not believe to hear Haroon Hamid of the DAWN Media Group replying to an audience question on NDTV show (6th May 2010) with Barkha Dutt that ‘terrorism is created in Afghanistan and Pakistan is a victim of it as well as India’. I wondered what happened to the media ethics of the news channels that he run, if nothing else matters to him including the truth. He didn’t even try to unravel the systematic, political and social space that gave birth to discontent and violence transformed into terrorism through the weapons of the same system in Pakistan and the region rather than indulging into a merely political blame game. While the political agendas of some groups and factions entail creating terror and monopolize on religious and nationalistic sentiments of masses, there is an enabling environment that embraced and accepts the invitation and both the agenda and the enabling environment have a symmetrical relationship with the terror and violence that we see in Afghanistan, India and Pakistan. Let’s also not forget and not trivialize the dynamics of social spaces in which we live and see others live, that foster reprisal and revolt by witnessing chronic poverty, famine and increased gaps between different members of the same society. The fragmentation of social spaces within the feudal society as a creation of the capitalist market paradigm that embodies injustice and tremendous rage among youth that not only created Kasab but hundreds of Kasabs in the making. However, for sure any struggles to absolve the process would be trying to rupture the status quo, something that the gatekeepers of the feudal society and their political agenda’s will not allow or approve of and we will be getting used to death sentence of one after another and would have accepted that justice is rendered. Unfortunately, the emerging trajectories do suggest that in quest of conformity with the popular imagination of our ‘independent’ media, we will not be able to recognize the just face of justice anymore but will seek satisfaction in more resentment, discontent and retribution.

Read more