Juvenile Crime: Is It Time For India To Enact A Parental Liability Law?

By LIKHAVEER | INNLIVE

Despite several instances of juvenile offences such as underage driving, Indian law is silent on making parents accountable for the excesses of their wards.

On July 14, college student Sumit Pandey, 17 crashed his father’s SUV and landed 50 feet down a gorge in Powai, Mumbai. Though Pandey and his three friends in the car escaped with their lives, one suffered a broken arm while the others had several bruises.

Commentary: 'Why Diplomatic Immunity Matters A Lot?'

By Praveen Swami (Guest Writer)

The Khobragade case is not about hurt national pride. There is a principle at stake here, and that makes New Delhi’s rare display of spine a welcome sight.

He left the police station laughing, an hour after he had been detained on 15 counts of assault and rape, one afternoon in 1981. New York resident Carol Holmes had that day spotted the smartly dressed man who had beaten and raped her at her apartment, walking down a Manhattan street. 

The police first exulted that they had found a man they believed was responsible for multiple crimes. Then they realised they could do nothing about it. Manual Aryee, 19, was the son of a diplomat at Ghana’s Embassy, and therefore protected by diplomatic immunity.

One Woman Dies Every Hour In India, 8500 Dowry Deaths

By Bismah Fatima / Hyderabad

One woman dies every hour due to dowry related reasons on an average in the country, which has seen a steady rise in such cases between 2007 and 2011, according to official data. National Crime Records Bureau (NCRB) figures state that 8,233 dowry deaths were reported in 2012 from various states. The statistics work out to one death per hour. 

The number of deaths under this category of crime against women were 8,618 in 2011 but the overall conviction rate was 35.8 per cent, slightly above the 32 per cent conviction rate recorded in the latest data for 2012. The number of dowry deaths in the country has seen a steady growth during the period between 2007 and 2011. While in 2007, 8,093 such deaths were reported, the numbers rose to 8,172 and 8,383 in 2008 and 2009 respectively. In 2010, 8,391 such deaths were reported, according to the NCRB.

Past On Present: The 'Godmen With Guns' In Ayodhya

By Brijesh Acharya | Ayodhya

With a large section of the sadhus in Ayodhya involved in serious crimes, the holy town is in a terrible mess. February 1992. In the midst of a political storm stirred by the Ram Mandir movement, Mahant Lal Das, the then chief priest of the Ram Janmabhoomi temple inside the Babri Masjid complex in Ayodhya was murdered. The search began for a new mahant, one with a clean reputation and free of any criminal charges or political motives. It was after much difficulty that Satyendra Das was appointed the new mahant.

21 July 2013. In a land dispute, the supporters of two mahants — Bhavnath Das, national president of the Samajwadi Party’s Sant Sabha, and Hari Shankar Das Pehelwan, a BJP supporter — opened fire at each other. One man was killed and a dozen injured.

Malfunctioning: The Aarushi Murder Case Investigations

By Kajol Singh & Avinash Sinha

An explosive and detailed analysis of the country’s most famous murder trial. At this moment, in a CBI court in Ghaziabad in Uttar Pradesh, events are unfolding that might eventually go down as one of the most shameful scandals in India’s legal history. This is a story that should frighten everybody. It’s a story of colossal incompetence and prejudice; a story about a wilful miscarriage of justice. It’s a story that could happen to anyone in the country.

CJ REPORT: IS THERE ANY SOLUTION FOR 'HOME INCEST'?

By CJ Richa Rai in Kolkata

Rape is such a heinous crime which makes a girl victim for her entire life. Every day in India a girl is beaten up, everyday a girl is being raped. Is there any act to cure the miserable life of the victim? No, since the graph of crime against women is steep on increase every day. Not only young girls are spared, but others too becoming prey - married, widows, minor, and even elderly women are trapped into this shameful act.  

Leading Indian dailies reported the bizarre news of a Mumbai businessman who was arrested for raping his daughter for nine years on the advice of a 'tantrik' to improve his business. The 21-year-old daughter exposed her 'rapist' father after he began sexually abusing her younger sister, a class 10 student, at the astrologer's behest. Following the Mumbai sisters' revelation, a 21-year old college student in Kolkata in West Bengal picked up courage to complain about her father who sexually abused her for eight years. The girl's traumatized mother who knew about it all along said, "My husband would always find a pretext to send me away so he could be alone with our daughter." Likewise, a 15-year old's complaint of prolonged sexual abuse by her father led to the 35-year-old father's arrest in Kolkata.

Of all juvenile crimes, 64% by 16-18 yr olds

NCRB Data Shows Rapes Committed By Juveniles Have Jumped By An Alarming 188%. Even as the nation pushes and the government debates lowering the age limit in juvenile crimes in the light of the Delhi gang rape, NCRB (National Crime Records Bureau) data shows that most juvenile crimes are committed by those in the age group of 16-18 years. 

    
Notably, the minor accused in the Delhi gang rape, who was allegedly the most brutal among the six accused, is 17 and a half years old. 
    
The NCRB data also shows that rapes committed by juveniles have jumped by 188%. The only categories of crimes involving juveniles for which growth figures are higher are theft and robbery, which recorded a growth rate of around 200% and abduction of women which recorded an exponential rise of 660%. 
    
In 2011, the rise in rape by juveniles (34%) over 2010 was again among the highest. Other growth figures that were higher than this included dowry deaths (63.5%) and abduction of women (53.5%) — both crimes against women. 

According to NCRB data for 2011, 64% of all juvenile criminals fall in the age group of 16-18. In 2011, 33,887 juveniles were arrested for 25,178 instances of crime. Of these, 1,211 juveniles fell in the 7-12 years age group, 11,019 fell in the 12-16 years age group while 21,657 fell in the 16-18 years age group. In Delhi itself, of the 925 boys arrested for juvenile crimes in 2011, 567 were in the 16-18 years age group. 
    
Again, while the debate on the issue of revisiting the age limit in juvenile crimes has focused on the Juvenile Justice Act being a reformatory tool, the NCRB data is not very encouraging, especially in case of Delhi. Close to 22% of all juvenile criminals in Delhi were repeat offenders in contrast to the national average of 11.5%. Sources say even this data gives a very conservative figure as only those convicted earlier are called repeat offenders. Also, those who have turned adults and continued in crime are not included. 
    
Even the argument that broken families and children without parents lead to more juveniles taking to crime falls flat if the NCRB data is any indication. It shows that in 2011, only 5.7% of all juveniles arrested were found to be homeless. The rest either stayed with their parents (81.3%) or relatives. 
    
However, socio-economic conditions have been a factor. A large chunk of the offenders come from extremely poor families, making for close to 57% of all juvenile criminals. Lack of education is another big factor with over 55% juvenile criminals being illiterate or limited to primary education. Across the country, Madhya Pradesh, Maharashtra, Chhattisgarh, Andhra Pradesh, Rajasthan and Gujarat accounted for close to 70% of all juvenile crimes registered in 2011. MP led the pack in rape cases with 271 cases, followed by UP (146) and Maharshtra (125). Delhi recorded 47 cases of rapes by juveniles. All together make for over 50% of all rape cases by juveniles.

'Where An Ageing Police, Never Caught Up With A City'

By Ankita Kirkere / Mumbai

Live in denial if you will, but here is a fact: Urbs prima in Indis, that generous colonial christening, is a title that no longer sits well on Mumbai’s furrowed brow. In fact, this city has lost every title she earned, and deservedly so: No longer fashion capital, definitely not culture/film capital, the less said about doing business in Mumbai the better, completely ignored by international gigs, never a big food destination. And if that was not enough, rapid urban decay is matched here by even more alarming social decay, led ably by the moral police and the language chauvinists, oftentimes one and the same.

Chhattisgarh emerges as a '420 state' in India

HNN RAIPUR BUREAU

Here is some disturbing news for Chhattisgadees (Chhattisgarh). India's new emerging state has now earned the dubious tag of '420 state'. Besides, it is the number four crime state in India, next only to Delhi, with 22,553 criminal cases being registered in the Police District of Raipur alone in 2009. Delhi city has recorded 45,247 criminal cases.
"Raipur has reported the highest (Delhi excluded) incidence of IPC crimes during 2009," says the latest edition of 'Crime in India' report released by the National Crime Records Bureau (NCRB). "Bengaluru reported the highest incidence of Preparation and Assembly for Dacoity and Cheating (Section 420 IPC) cases," the report added.

Statistics reveal that as many as 22,553 criminal cases were registered under various sections of the IPC in Raipur in 2009. Of this 5,017 were cases of cheating. Mumbai follows closely with 31,262 criminal cases.

In fact, Ahmedabad, which comes third in the list, had registered only 20,726 cases. "The cities of Delhi, Bengaluru and Mumbai have accounted for 13.2%, 9.4% and 9.1% respectively of the total crimes reported from 35 mega cities," the Crime in India 2009 report said.
Bangalore also topped in the number of cases registered under the Information Technology Act. Of the 178 cases reported under the IT Act, 97 were registered in Bangalore followed by 10 in Ahmedabad; six each in Bhopal, Coimbatore and Kochi and, five each in Delhi, Indore, Ludhiana and Pune.

HOW COAL MAFIAS FUEL INDIA'S POWER CRISIS?

By Arvind Behl & Kajol Singh

Seven shots rang out at a wedding reception in this sooty city in eastern India, and Suresh Singh, India’s “Coal King”, fell fatally wounded.

He was a wealthy coal trader, a politician and, police say, a crime boss. At the time of the shooting, Singh had 14 criminal charges against him, including one for homicide. His career and murder are emblematic of one of India’s most nagging economic problems: the corruption that cripples the crucial coal industry.

Rohtak 'Dabanng' Girls: The Ritual Of Social Media Outrage Is All ‘Chutzpah’

In the movie Haider, the protagonist uses the word ‘chutzpah’ to telling effect. The English dictionary won’t tell you what exactly he meant by that; its import lies in the context of his utterances. Try thinking of a regular, and popular, expression in Hindi sounding close to it, maybe things will get clearer. 

And ‘chutzpah’ (sorry about using it here, but it feels apt) is the word that comes immediately to the mind when one notices the outrage on the social media and elsewhere after every incident of rape or molestation of women in the country. Does it serve any purpose other than allowing people to feel nice about themselves?

Statistical Lies: How India’s UP State Fudges Crime Data

Is Uttar Pradesh (UP), India’s most populous state, better governed than richer and more advanced Maharashtra, Tamil Nadu, Karnataka and Gujarat? If you look at some statistics, the answer is yes.

UP has a reputation for widespread mis-governance, but official data reveal lower disease outbreaks, lower crimes and lower accidents than the other states we mentioned. And so unfolds a story of lies, damned lies and statistics.

Hyderabad Blasts: Investigators’ ‘Leaks’ Don’t Inspire Confidence

You have to say one thing for our intelligence and security agencies. They may have been asleep at the wheel in the lead-up to  the Hyderabad bomb blasts, even if there had been credible alerts and tip-offs. That lapse in intelligence, and their wholesale failure to provide pre-emptive security, may have cost the lives of ordinary folks. But within days of the blasts, they claim to have wrapped it all up, and have even reconstructed the entire crime sequence.

In fact, so sure are they of the facts of the case that they have already begun preening in front of a gullible media claiming that they will have cracked the case “within three to four weeks” – and are putting out information that could seriously jeopardise the investigation or the effort to nab the real suspects in the case.

Thus, for instance, this report claims, citing unidentified “investigators” as saying that they had established Yasin Bhatkal, the operational commander of the Indian Mujahideen, personally planted one of the two bombs in Hyderabad on Thursday. In fact, the report adds, the investigators believe he could still be in Hyderabad or in neighbouring Cyberabad.

If there is even an iota of truth in that claim, that’s precisely the sort of information that investigators shouldn’t be leaking out to the media. If Yasin Bhatkal did in fact plant the bomb in Hyderabad, and is still in hiding in the city or in the neighbourhood, how does it help the cause of the investigation for the probe teams to reveal their hand and let it be known publicly that they were on to him? It will only have the effect of alerting him and his partners in crime about the state of the investigation and help him to cover his tracks and go deeper into hiding.

In the same manner in which live and unfiltered media coverage of the November 2008 attacks on Mumbai actually helped the terrorists and their handlers to learn that NSG commandoes were being air-dropped onto the roof of the Taj Mahal hotel, or that there were survivors in some sections of the hotel (which put the lives of those survivors at risk), the running commentary being offered by the investigators on the state of their investigations only serves to tip off the terrorist cells.

Much of such pre-emptive preening in front of the media has in the past proved to be spectacularly off the mark – or a manifest attempt to claim ex-post facto credit for findings that, if they had been proffered earlier, would have averted the crime in the first place. As Firstpost had noted here, there is a history of investigators in India shooting off their mouths and weaving fanciful theories that eventually don’t stand in a court of law.

Indicatively, within days of the David Headly-Tawahhur Rana story breaking in 2009, Indian sleuths put out an avalanche of stories in the media about how Headley had cased the joint ahead of the November 2008 attacks, stayed at Osho communes and so on. The irony of it was that if these accounts were true, they had happened under the very nose of the same investigating agencies, without them having the faintest clue about it. Yet, within the space of a few days, they had pieced together everything about Headley and what he had done.

The fact of it is that intelligence and security agencies are today facing flak for having failed to pre-empt and avert the Hyderabad blasts – even though it didn’t take much to know that in the wake of the hanging of Afzal Guru, there would be an escalation in terrorist activity. They themselves received tip-offs, but they made nothing of it owing to a prevailing bureaucratic mindset within the Home Ministry that sees intelligence-gathering as a file-pushing exercise in a post office.

In fact, as this report makes clear, the dark reality of counter-terrorism operations in India is that they are characterised by “lack of coordination (among the various agencies), ego clashes, personal dislike for a particular officer spilling over to a professional domain” and secrecy born of paranoia that ensures that information isn’t shared across agencies.

As if all this wasn’t bad enough, the Home Ministry, as the report notes, picks and chooses which of the investigations into specific terrorist attacks it will hand over to the National Investigation Agency (NIA) – and which it will choose to keep away.  Which is why, it adds, every time an attack takes place, the NIA is looking over its shoulders at the Home Ministry – trying to read the minds of the mandarins and their ministerial incumbents.

When Ministries play ducks and drakes with terrorist attacks, what faith can be placed in these leaks from investigators that they are close to cracking the case or that they have fully reconstructed the crime sequence and have identified the real perpetrators?

The only true test of an investigation’s success is the diligent harnessing of forensic evidence and the silent unravelling of the conspiracy that underlies, which leads to arrests of those involved and, over time, their conviction in a court of a law. Far from reinforcing faith in the investigators’ capabilities, such premature preening in front of media – even before the investigations are complete – only gives room for lively apprehension, born of well-merited cynicisim, that  something is not quite right about the investigations.

Analysis: The Death Lottery

Long before Mohammed Ajmal Kasab went to the gallows four years after his slaughter of scores of people in Mumbai, a villager from Banswara in Rajasthan named Ram Chander alias Ravji was hanged after an even faster trial. It was on 4 May 1996. He had been charged with the murder of his pregnant wife and three children on the night of 6 May 1993. In a fit of anger, not only did he hack his family to death, he also attacked his mother. A lower court sentenced him to death, the state’s high court upheld his sentence, the Supreme Court endorsed it, and the President of India at the time, Shankar Dayal Sharma, dismissed his mercy petition in less than a week (on 19 March 1996).

Ravji’s case could have gone down in history as a case that achieved closure in record time. Yet, it finds place in the history of Indian jurisprudence for an altogether different reason: for miscarriage of justice, in the opinion of a higher bench of the Supreme Court. The court had, in handing out its death sentence to Ravji, deviated from the guiding principles of capital punishment laid down by a Constitution bench in 1980.

What makes matters worse is that between 1996 and 2009, there were other cases in which the Ravji case was cited as a precedent for awarding death sentences. As a result, by 2009, when the Supreme Court admitted an error of judgment in that case, 13 people so sentenced were awaiting execution, and two had already been put to death: Surja Ram in 1997, and of course, Ravji himself the previous year. Despite the apex court’s admission of an error so profoundly grave, the other death sentences have not been overturned.

Kasab’s execution may have attracted popular attention to a debate on the death penalty in India, but within legal circles, the debate had never died. In July, well before Kasab was secretly executed in Pune’s Yerawada Jail on the morning of 21 November, 14 eminent jurists, including former judges and chief justices, wrote to the President of India urging him to use his powers under Article 72 (to grant pardons, commute sentences, etcetera) of the Constitution to prevent miscarriage of justice in several capital punishment cases. These letters of appeal, similar in nature and content, were prompted by the apex court’s admission—on three different occasions between 2009 and 2011—that it had erred in applying the ‘rarest of the rare’ doctrine laid down by a five-judge bench of the Supreme Court in 1980.

Drawing President Pranab Mukherjee’s attention to the issue, the jurists asked for the sentences of the above mentioned 13 placed on death row between 1996 and 2009 to be commuted. ‘None of these cases involve crimes against the State. Further, the concerns raised in this statement have nothing to do with the larger debate about the desirability of retaining [the] death penalty. Rather, they pertain to the administration of the death penalty in a conscientious, fair and just manner,’ wrote retired Delhi High Court Chief Justice AP Shah, ‘Executions of persons wrongly sentenced to death will severely undermine the credibility of the criminal justice system. This matter goes to the very heart of our Constitution because it involves the taking of lives by the state on the basis of judgments admitted to be erroneous by the Supreme Court.’

“The Supreme Court could have reopened those cases in an exercise of its discretionary power under Article 142 of the Constitution and taken corrective measures to deliver complete justice to the prisoners,” says Justice Shah, whose views on the matter are in consonance with other letter writers, among them Justices PB Sawant, BA Khan, Bilal Nazki, PK Misra, SN Bhargava, BH Marlapalle, Prabha Sridevan, BG Kolse-Patil, Hosbet Suresh, KP Sivasubramaniam, PC Jain, Ranvir Sahai Verma and Panachand Jain.

In order to understand the error that the retired judges refer to, one needs go back to 1980. The Supreme Court addressed the issue of the constitutionality of the death penalty for the first time in 1973, in the Jagmohan Singh vs State of UP case. The Court ruled that the death penalty was constitutionally permissible if imposed after a fair trial in accordance with a ‘procedure established by law.’ In 1973, India’s Parliament enacted the Criminal Procedure Code (CrPC), laying down that in any judgment awarding a death sentence, the court must state specific reasons for choosing that penalty so as to limit its use to special circumstances. This reversed the earlier practice and capital punishment became the exception instead of the norm, as it was under the CrPC enacted by the British.

It was seven years later, in 1980, while adjudicating on the matter in the case of Bachan Singh vs Punjab, that the five-member constitution bench laid down its set of guiding principles on the death penalty: mainly, that it be applied only in ‘rarest of the rare cases’, but also that sufficient weightage be given to mitigating circumstances (pertaining to the criminal) along with aggravating circumstances (relating to the crime). Bachan Singh, who had been charged with the murder of three people after he had already served a life term in another case, had been sentenced to death this time round by a lower court.

In the Ravji case, however, while confirming the death sentence, a bench of two judges of the Supreme Court explicitly held, ‘It is the nature and gravity of the crime, but not the criminal, which are germane for consideration of appropriate punishment in a criminal trial.’ In doing so, the court held that the circumstances relating to the criminal are irrelevant and focused exclusively on the circumstances relating to the crime. This aspect of the decision in the Ravji case was in direct conflict with the Bachan Singh ruling that had come from a higher bench. However, on several occasions, the Supreme Court has invoked the Ravji precedent while awarding a death sentence. It was only in 2009, while hearing Santosh Kumar Bariyar vs State of Maharashtra, that the court noticed the conflict between Ravji and Bachan Singh.

The court observed: ‘The rarest of rare dictum serves as a guideline in enforcing Section 354(3) and entrenches the policy that life imprisonment is the rule and death punishment is an exception. It is a settled law of interpretation that exceptions are to be construed narrowly. That being the case, the rarest of rare dictum places an extraordinary burden on the court, in case it selects death punishment as the favoured penalty, to carry out an objective assessment of facts to satisfy the exceptions ingrained in the rarest of rare dictum. The background analysis leading to the conclusion that the case belongs to the rarest of rare category must conform to [the] highest standards of judicial rigour and thoroughness as the norm under analysis is an exceptionally narrow exception.’ It was while ruling on this matter that the court admitted the error: ‘We are not oblivious that the Ravji case has been followed in at least six decisions of this Court in which death punishment has been awarded in [the] last nine years, but, in our opinion, it was rendered per incuriam (ignored the statute of law).’

The SC noted six other cases where Ravji was followed and held that these decisions were also wrongly decided: ‘Shivaji vs State of Maharashtra, Mohan Anna Chavan vs State of Maharashtra, Bantu vs State of UP, Surja Ram vs State of Rajasthan, Dayanidhi Bisoi vs State of Orissa and State of UP vs Sattan are decisions where Ravji has been followed. It does not appear that this Court has considered any mitigating circumstance or a circumstance relating to [the] criminal at the sentencing phase in most of these cases. It is apparent that Ravji has not only been considered but also relied upon as an authority on the point that in heinous crimes, circumstances relating to [the] criminal are not pertinent.’

Following Bariyar’s case in 2009, two other judgments of the court (Dilip Tiwari vs State of Maharashtra and Rajesh Kumar vs State) from 2010 and 2011 referred to that deviation from the principles laid down in 1980.

The matter does not end with the miscarriage of justice in those seven cases alone. In cases where capital punishment is awarded, choosing what is ‘rarest of the rare’ imposes a moral burden on the court because of its subjectivity. “There is bound to be inconsistency in applying the dictum,” says Justice AP Shah, “The inconsistency is inherent because the application is subjective. The SC’s attempt to regulate capital punishment has been unsuccessful on its own terms.”

Delivering the Naroda Patiya judgment, the special judge acknowledged that former Gujarat minister Maya Kodnani was guilty of leading a mob against a group of people of her constituency who she was supposed to protect. In all, 97 persons were killed. It can be argued that Kodnani was a sustained threat to society and the victims of the massacre were both innocent and helpless. Yet, the court chose to sentence her to prison for life. In a more recent case, a Hoshiarpur sessions court sentenced 35-year-old Jasvir Singh to death on 18 September on charges of killing his children and trying to kill his wife by setting his house on fire. The alleged crime was committed on 27 January this year, the case reached the sessions court on 30 July, and the death sentence was delivered after six hearings. The court relied on the sole witness, the man’s wife, in deciding the case and held that it fell under the category of ‘rarest of the rare’. The court’s order reads: ‘The convict being 35 years of age could well pre-conceive or understand the consequences of his misdeed. 

The convict being of such age in no manner could be described to be immature or that he could not distinguish between wrong or right before the moment. So in the considered opinion of the court it is a rarest of rare case. If [a] sentence lesser than capital punishment or death sentence is awarded, after serving out the same, he will come out of prison and may again turn to be a menace to society and he will remain a continuing threat to society. The attack by him was cold blooded and hence calls for deterrent punishment for this morality reprehensible or abominable crime. So it being a rarest of rare case only, death sentence will meets the ends of justice as it will also be an eye opener to others not to indulge in akin activities. I, therefore, sentence Jasvir Singh convict to Death for offence under Section 302 of Indian Penal Code and direct that he be HANGED BY THE NECK TILL HE IS DEAD.’

Singh’s lawyer Anil Walia says he will appeal against the verdict. “The court overlooked the fact that the accused himself had suffered 20 per cent burns in the fire and that his wife, with whom he had strained relations, was the only eyewitness. It is her version that has been solely relied upon.”

More recently, on 22 November, the Delhi High Court admonished the Delhi Police for shoddy investigation in the Lajpat Nagar blast case of 1996, while acquitting two accused who had been awarded death sentences by a lower court. The acquittal came after the two had already spent 13 years in jail. The two-judge bench pulled up the police for its ‘casualness and slipshod approach’ in investigating the case. 

“The use of the death penalty in India is riddled with fatal flaws,” says Shailesh Rai, senior researcher at Amnesty International India, “Research conducted by Amnesty and the People’s Union for Civil Liberties has found evidence in Supreme Court judgments of abuse of law and procedure and of arbitrariness and inconsistency in the investigation, trial, sentencing and appeal stages in death penalty cases.”

And it is not just rights vigil groups that have found arbitrary conduct in these matters. In a judgment as recent as last week (Sangeet vs Haryana), the SC has gone even further to admit that sentencing had become a ‘judge-centric exercise’. The court observed: ‘It appears to us that even though Bachan Singh intended ‘principled sentencing’, sentencing has now really become judge-centric as highlighted in Swamy Shraddananda and Bariyar. This aspect of the sentencing policy in Phase II as introduced by the Constitution Bench in Bachan Singh seems to have been lost in transition…. Given these conclusions, we are of the opinion that in cases such as the present, there is considerable uncertainty on the punishment to be awarded in capital offences—whether it should be life imprisonment or death sentence. In our opinion, due to this uncertainty, awarding a sentence of life imprisonment in cases such as the present is not unquestionably foreclosed.’

The government of India appears to be in no mood to do away with the death penalty anytime soon. Though a majority of countries in the world have abolished capital punishment, India is among the 39 that recently opposed a United Nations resolution to that effect. Many argue that Indian society is not yet ready for doing away with hanging.

From a victim’s perspective, awarding death to the perpetrator of a heinous crime might seem just. But the Indian justice system is designed in principle to be reformative and not retributive. In practice, though, it lies somewhere in the middle. There is also the argument that, acting in criminal matters, the State represents the conscience of society as a whole. In the opinion of Former Solicitor General Gopal Subramaniam, “Death penalty in India is still a relevant punishment for the reason that there are certain kinds of crime which are so extreme and that are so abhorrent to the judicial conscience of civil society that death alone would be the just punishment.” However, he cautions that such a sentence must be awarded only if “no other punishment can be awarded”.

Yet, inordinate delays in executing those who are already on death row leads to a kind of double jeopardy, their trauma worsened by an almost unbearable uncertainty, which itself is an argument against capital punishment. The last man to be executed in India before Kasab was Dhananjay Chatterjee, a security guard accused of rape and murder, who was hanged in 2004. He spent 13 years in prison before he was hanged.

Earlier this year, three separate but similar cases were filed by death row convicts. In the cases of Mahendra Nath Das, Devinder Pal Singh Bhullar and Rajiv Gandhi’s assassins, their mercy petitions were pending with the President for more than a decade each. After the rejection of their pleas, the accused petitioned the SC for justice on account of an ‘unexplained delay’.

There is also the case of Sonia Punia. In February 2009, five years after she was sentenced to death on charges of having murdered eight members of her family, Punia wrote to the President to dismiss her mercy petition and execute her. ‘I don’t have any means to live and want to die once rather than dying with each passing minute,’ she wrote. Nearly four years later, she awaits death in Ambala Jail. But in cases like Ravji, where the court has admitted its error, it is too late to revoke the sentence.

Relationship: A Marriage Of 'Her' Choice

The curbs on a woman's right to choose who to have a relationship with and/or marry manifest themselves in myriad ways. The data suggest that 'honour' crimes against women are widespread, but prevailing customs in many parts of the country thwart the protection of this right.

At the age of 21, Sarika Pandey discovered that while she had expected to grow into adulthood and independence, she actually had no voice of her own. That, despite her convent schooling and management degree, neither her body nor her spirit was free. The trigger for this revelation was the fact of Pandey wanting to marry a man of her choice - Salim Aslam. To her outwardly modern, high-caste family, it was simply unacceptable. The 'us or them' threat worked for a while, but one morning Pandey made up her mind and walked out of her home. What followed taught her how little women have truly gained, despite the outward appearances of a modernising nation. 

First came the coercions and the threats, then Hindu hardliners stepped in to decry the 'defiling of their girls' by Muslim boys. A case of kidnapping was registered against Aslam, a kurki notice issued and the entire family had to be on the run for six months. It was a marriage that caught Lucknow's voyeuristic curiosity like few other things and the day Pandey was produced in court to record her evidence many of the curious turned up for a peek. Six years into her marriage, she still cringes at the horror of those days. "My greatest fear was for my husband. To see my own brother and other male relatives hovering around the court premises terrified me, but I was determined to speak the truth. My in-laws lost their business and their home. And for what? We had not done anything illegal. We were within our religious and Constitutional rights, but we realised that social structure is above all. It extracts its price." 

Pandey was lucky. She got away relatively easy in a country where each year many women are forced into marriages, ostracised for marrying out of their caste/religion, or worse still, killed for the violation of social custom. 

The curbs on a woman's right to choose who to have a relationship with, and/or marry - or not to marry - often manifest themselves in myriad ways. Spurned lovers flay acid on the faces of girls they are besotted with; brothers slit the throats of sisters who dare to bring 'shame' to the family; panchayats decree that violators be ostracised, paraded naked, or worse - killed; couples are hounded so ferociously that they decide to end their lives; or often the man deserts his wife under familial pressure and remarries ... the list is endless and the examples everyday. 

In June this year, a 45-year-old Kanpur woman's face was blackened and her head shaved by her own brothers who suspected her of having an affair while her husband was away. This May, in Hardoi district, some 100 kilometres from Lucknow, a rejected lover turned into a human bomb to kill his former girlfriend on her wedding day, only to end up being severely injured by the explosives which went off unexpectedly. In January a Meerut girl gulped some pesticide to escape the taunts of her family which objected to her relationship with another girl. The girl survived only to have her private hell turn into a media circus. 

The same month another Meerut girl was killed by her brother when she was lying in a hospital recovering from an earlier failed murder attempt by the same brother. The family's reaction was stoic; the girl's father - who helped the boy escape after the crime - reasoned that there was no logic to losing to son after having lost a daughter! In December last year, a 15-year-old Lucknow girl was married off to a man twice her age after the man promised to help her father clear off a Rs.30,000 debt. 

The denial of choice often operates under an elaborate garb of tradition. In Rajasthan, for instance, the nath prataha, a custom that allowed a woman to remarry, with the family into which she was marrying paying a certain amount of money to her husband, is now used to sell women repeatedly. Certain communities of the state deny their daughters the right to marry, for they must get into the flesh trade to look after families, often while the men fritter away the earnings on gambling and drinking. 

A widespread crime 
And no one is quite sure how many women are being abused in this manner. According to statistics from the National Crime Records Bureau, in 2004, the total number of crimes against women reported was 1,54,333, up 9.8 per cent from 2003. The total number of women murdered during the period was 8119. Of these 4006 murders were of women between the age groups of 18 to 30 (that is 46 per cent). Since honour killing is not a listed crime, one can only deduce what percentage of these murders fall into that category. One could try to fit them into the category of 'murders due to love intrigues', which were 7.5% of the total in 2004. Another category within which they could be viewed are 'murders due to casteism', of which 35.9 per cent happened in Bihar. In 2004, 15,672 females were kidnapped, of which 9,622 (or 61.4 per cent) were kidnapped for marriage-related reasons, possibly another way to count honour killings. 

Jagmati Sagwan, an Assistant Secretary of the All India Democratic Women's Association (AIDWA) who has been working in 10 Haryana districts since 1985 on the issue, asserts that there are six to seven reported cases in any given month. She also refers to a statement by the state's DGP that 10 per cent of all murders of women are honour killings. "We have been trying to build opinion and awareness but the biggest block is the family which believes ladki ko sambhalna (to set the girl on the right path), is its most important duty," she says of a region where flare-ups are seen even at marriages that violate gotra and regional sanctions. 

Tulika Srivastava, Founder, Association for Advocacy and Legal Initiatives (AALI), Lucknow debunks the assertion that any one region in the country is particularly prone to honour killings. "The trend is rampant in any patriarchal structure. Power rests in property and the sexual control of women. Land is valuable because it is fertile. Ditto for women. In UP, in the western belt, particularly Muzzafarnagar is in the news only because non-governmental organisations have played up the matter. Even the police there are now willing to recognise and register such crimes", she says. But elsewhere there is a cloak of secrecy and an unwillingness to accept that such violations could exist in our society. One Justice of the Supreme Court in fact stated on record that honour crimes did not exist in India, "because this is not Pakistan". 

Expert opinion however is firm that autonomy for women is unacceptable. Where the state has intervened, changes have been yielded grudgingly, but sexual autonomy remains a firm no. The honour of the family rests in the virginity of its daughters and that measure is unlikely to change soon. Strangely the law has also become a stick to beat consenting couples looking to marry. The Special Marriages Act, 1954 is a much abused example. The Act mandates that the parties intending to get married give a notice to the Marriage Officer not less than 30 days preceding the marriage. That notice is to be pasted in a Marriage Notice Book which is to be open for inspection at all reasonable times, without fee, by any person desirous of inspecting the same, so that objections to the union can be registered. It is often 'social do-gooders' who then take it upon themselves to notify the families concerned. 

In those rare instances where inter-caste and inter-religion marriages gain acceptance, the unspoken demand is that the woman give up her identity for a new religion and/or name. Moreover this is not an issue that is left open to familial negotiations; the concerned communities step in to do their negative bits. To marry the man of her choice, a woman needs to be subjugated, her identity destroyed so that she meshes into the new family she has chosen as her own. 

Geetha Devi, senior lawyer practicing at the High Court of Karnataka, recalls the case of a couple looking for a way to get married without giving up their separate religious identities. The families had consented but the moral pundits were aghast and the marriage had to be called off. She also points that though Hindu-Muslim unions attract social criticism, honour crimes per se are not rampant in the southern states. "But it won’t be long before it percolates, just like dowry and ostentatious weddings which we have borrowed from the north," she notes. 

In July this year, a Supreme Court bench of Justices Ashok Bhan and Markandeya Katju, while quashing criminal proceedings against one Brahm Kumar Gupta who had eloped with Lata Singh and ended up with a case of kidnapping against him, noted that the country was getting ruined by the caste system and the filing of such false cases was "not in the national interest". The bench asked the police to shield such couples from societal and familial pressure and take stern action against those who use threat and violence against them. The court also noted that the ferocity against such marriages was shocking given that neither the Hindu Marriage Act nor any other law put a bar on the same and that such marriages were in fact good for national integration. 

Geetha Devi cautions against an overdose of optimism on the SC's observations. "The SC direction will not be followed till a government order is issued. Moreover it needs to be incorporated in the police manuals. Crimes against women, and especially inter-relations between the family are not priority matters for the police which has been saddled with ostensibly more important tasks like VIP protection. But the direction is effective to the extent that now a couple can ask for protection as a matter of right." 

Legal intervention, however, is by itself insufficient, note many advocates for women's rights. A slew of measures that include perceptive building, sensitisation of legal and police officials, reforms of state institutions, education to women, community mobilisation, the provision of shelter homes for women, enhancing budgets for women friendly interventions are just a few of the threads that need to be woven into a complete and adequate basket of solutions. Until that happens women's voices on one of the most critical decisions of their lives are likely to remain muffled and unheard.

A 2D-Story Of Indian Diplomat 'Devyani Khobragade' In US

By Sanjay Mehlogkar | New York

SPECIAL REPORT A diplomatic war reminiscent of cold war days has broken out between India and the United States of America. It is now threatening the warm relationship developed between two countries over the past 10-15 years. In a strong response to the arrest of a young Indian woman diplomat Devyani Khobragade in New York, India is now even refusing to entertain a high level visiting US Congress delegation. In an unprecedented move, India has even asked all US diplomats serving in India to surrender their Identity Cards.

India is describing the arrest as an insult to the country's sovereignty. The strip searching and handcuffing of Devyani added fuel to the fire.

Why A Rape 'Victim' Can Never Be A ‘Survivor’ In India?

By Roshini Joshi | Mumbai

SPECIAL REPORT Are women safe in India? Well this is a question frequently being asked today with the increasing number of rape and molestation cases across the country. While the cases of crimes against women are increasing, the mentality of Indian people is being judged by the world by their absurd statements.

So, why is it that a rape victim in India remains a victim and never become a rape survivor? Is it the mentality of people or lack of strict laws or the men or lack of education? Too many factors to look into, but the examples we are about to quote just suggest that it is the mentality of people in India that is stopping women to grow as an individual and live confidently.

SUPREME COURT HOLDS THAT CHEQUE DISHONOUR PROSECUTION CAN BE HELD ONLY AT THE COURT IN WHOSE JURISDICTION THE CHEQUE WAS ISSUED

A three judge bench of the Supreme Court in Dashrath Rupsingh Rathod v. State of Maharashtra (criminal Appeal No. 2287 of 2009) has laid the controversy pertaining to jurisdiction of the courts in cheque bouncing cases under Section 138 at rest conclusively.

The court has laid down that the place of the issuance or delivery of the statutory notice or where the complainant chooses to present the cheque for encashment by his bank are not relevant for purposes of territorial jurisdiction of the complaints. The court noted that the liberal approach preferred in Bhaskaran was being misused by issuance of notice from a situs which had no connection with the accused or with any facet of the transaction to confer territorial jurisdiction on courts which had none.

26/11 Story: Kasab's Last Words, 'Aap Logon Ki Jeet Hai'

By Rohini Matunga | Mumbai

One morning in January 2009, Ajmal Kasab, the lone terrorist captured alive during the November 26, 2008 attacks, told Investigating Officer Ramesh Mahale, "It has been eight years and you haven't hanged Afzal Guru, I have enough time."

Mahale, 56, then a Senior Inspector with the Crime Branch, was surprised. "I was unaware of the number of years Guru had been waiting. Further questioning revealed that Kasab had not only undergone physical training, but also knew enough about our legal landscape," he recalls, five years after the Mumbai Attacks

On the night of the 26/11 attacks, Mahale was outside Hotel Trident, co-ordinating rescue operations, when he was sent to Nair Hospital.

India split over terror trial

By M H Ahssan

In the aftermath of the Mumbai terror attack last November in which nearly 200 people were killed and property worth millions of dollars destroyed, intense public debate has erupted over the fate of the lone surviving terrorist. Opinion is sharply divided over whether Mohammed Ajmal Amir Kasab should be given a fair trial, and whether - given the magnitude of his crime - Kasab can rightfully claim legal help.

Kasab's trial is set to start on April 6 in Mumbai, and a few vital points need to be raised. These include India's international obligations, its human-rights stand and the constitutional rights guaranteed to every citizen - Indian or foreign - in this regard.

Firstly, the 1948 Universal Declaration of Human Rights, ratified by India, protects the "presumption of innocence until proven guilty in a court of law at which the defendant has had all the guarantees necessary for his defense". So, failing to provide legal support to Kasab would sully India's reputation as a democracy - the world's largest - rooted in the principles of justice and social equity.

Secondly, the Indian constitution guarantees a right to legal aid and representation and ensures that every individual get a "fair, just and equitable procedure" in court for any defendant, "regardless of his nationality". The right to life guaranteed under Article 21 of the constitution includes the right to legal aid. Similarly, Article 39A mandates equal justice and free legal aid. Section 303 and section 304 of the Criminal Procedure Code mention the right of an accused to be "defended by a lawyer and the state's duty to provide legal aid".

Even the Supreme Court states, "Free legal assistance at state cost is a fundamental right of a person accused of an offence which may involve jeopardy to his life or personal liberty." This in short is the essence of the country's criminal justice system. As Home Minister Pranab Mukherjee told the media recently, "Every person in India who is accused or prosecuted is entitled to have a fair trial and the Indian judiciary is known for its transparency and for its fair deal."

However, while the law is unequivocal about Kasab's right to fair representation, a section of the Indian public has expressed severe displeasure over this prospect. This segment feels a fair trial for Kasab is "unpatriotic". After all, they argue, how can a criminal - who has been caught on camera unleashing terror in a city and mercilessly killing innocent people - lay claim to justice? Kasab was captured by the security forces outside Chatrapati Shivaji railway terminus, from where he was heading to other targets.

The groundswell of public anger against Kasab is enormous. And unfortunately, undesirable elements are taking advantage of the situation by giving the case a political spin. Maharashtra-based political parties like Shiv Sena, for instance, are demanding that Kasab be executed at the same terminus where he and his accomplices killed several innocent people.

To carry forward its moral policing agenda further, the Sena has even threatened Indian defense lawyers who agreed to represent Kasab in court. Senior lawyer Anjali Waghmare, a government legal aid panel lawyer and wife of a city cop, who has now agreed to defend Kasab, albeit under a heavy security cover. She had earlier withdrawn from the case following a violent protest outside her home in Mumbai by hundreds of Shiv Sainiks.

On Monday, over 300 Sainiks pelted stones at Waghmare's house and forced her to sign a statement promising she would drop the case. This senior lawyer is the perfect choice for the Kasab's defense, as she has appeared in many high-profile crime and corruption cases and has been a member of the governmental legal aid panel for the past 12 years. Despite the harassment, she confirmed on Wednesday that she will continue as Kasab's lawyer.

Waghmare is not the first lawyer to have faced Shiv Sena's ire. In December, a local lawyer, Dinesh Mota, was selected to represent Kasab but withdrew at the last minute, citing personal ethics. As legal experts point out, the protestors are missing a vital point: if Kasab doesn't get a lawyer, the case will not even proceed. He may even be acquitted. Clearly, this crucial case can't be decided by the pressures of mob rule or a kangaroo court but by a constitutionally appointed court of law.

Kasab has been under detention and interrogation since being captured. The mayhem unleashed by him and his militant colleagues has earned worldwide condemnation in the strongest possible terms. The international community has also been exerting pressure on Pakistan to act swiftly on terror and fulfill its promises to curb terrorism.

However, Islamabad is still reluctant to accept the fact that the attackers were Pakistani nationals and were specially trained for the purpose by militant outfits. On the same grounds, Pakistan has also refused any legal aid to Kasab.

It was against this backdrop that the Indian government stepped in to offer legal assistance. However, a major twist in the case came when the Mumbai Bar Association unanimously passed a resolution telling its members not to defend Kasab in a court of law. Expressing solidarity with other like-minded groups, the association said that Kasab should be tried on circumstantial evidence and no legal aid should be provided to him in view of the gravity of his crime.

The association ignored the fact that not representing Kasab would be a gross violation of the Indian constitution and is against the principles of natural justice. It is beyond a shadow of doubt that Kasab deserves stringent punishment for his crime, but his conviction should come in a dignified and just manner, supported by the rule of law. By providing legal aid to Kasab, India has nothing to lose as sentencing in this case looks inevitable. By giving a fair trial to the terrorist, India will also gain an edge over Pakistan.

Diplomatically too, Indian can then leverage this opportunity to showcase its impartiality in the global arena and apply indirect pressure on Pakistan to curb the menace of terrorism. The country can also be seen as upholding its respect for human rights. Simultaneously, Kasab's case can also demonstrate to the world that India has incontrovertible evidence that the Mumbai massacre was the handiwork of the Pakistan-based Lashkar-e-Taiba.