Archive for the Law Category

Mr Katju and the Perils of Being Earnest

Posted in India, Law, Politics with tags , , , , , , , , , on March 30, 2013 by salaamreaders

“A mere busybody or a meddlesome interloper or wayfarer or officious intervener without any interest or concern except for personal gain or private profit or other oblique consideration cannot be allowed to abuse the process of the Court by initiating vexatious or frivolous litigation.” This is what the Supreme Court had observed about locus standi in Janata Dal Vs H S Chowdhary. Though, one might even agree that Mr Katju was just being earnest, and not moved by any personal gain or profit, in appealing for pardoning Mr Sanjay Dutt, he would be well advised to consider the above observation of the Supreme Court. And that the affected gentleman has publicly declared his disinclination in seeking such a pardon, could provide the perfect occasion for such introspection too. It is indisputable, that, like any other ordinary citizen, Mr Katju too has the right to hold an opinion in the matter. The only difficulty is, that, he is no ordinary citizen. He is a former judge and currently holds an office under the government. Judicious, if not judicial, rectitude is highly commendable even for retired judges! Such, alas, are the perils of being earnest!

Be that as it may, the law, in India, relating to pardon etc has once again become a subject of fierce public debate. The last time was in 1961, when the Governor of the erstwhile State of Bombay had suspended the sentence of Commander Nanavati who had been convicted and sentenced to life imprisonment for the murder of his wife’s paramour. His case had become such a cause célèbre that it was not only debated intensely in the press but also resulted in abolition of the jury system in India.

In India, the President and the Governors can grant pardons, reprieves, respites or remissions of punishment. They can also suspend, remit or commute sentences. The relevant provisions are contained in Articles 72 & 161 of the Constitution. It has been argued by Mr Mahesh Jethmalani and also accepted, so graciously, by Mr Katju, that the President alone can grant pardon to Mr Dutt who was convicted under the Arms Act. It cannot be anybody’s case now that Mr Dutt was involved in any terrorist activity as the Supreme Court has exonerated him under the TADA. He has been convicted only for illegal possession of a firearm and awarded the minimum prescribed punishment of five years imprisonment. He has already served about eighteen months thereof.

A pardon is a matter of grace; an act of mercy. It not only removes the punishment but wipes out the guilt attached to the offence also, notwithstanding any  judicial verdict. It is as if the offender had never committed the offence. So, if Mr Dutt is pardoned, “it makes him, as it were, a new man, and gives him a new credit and capacity” in the words of Justice Field. But would the President do it if Mr Dutt were to appeal to him? Or rather would the government recommend it, for it is actually the government which takes a decision in such matters? In our Constitutional scheme, this being an executive function, the President is obliged to act on the advice of the Council of Ministers.  In the present circumstances, the chances are remote that the government, accused as it is of being a lame duck and struck with policy paralysis, would want to be seen to be soft on the son of its owmn former MP. Mr Dutt has perhaps, therefore, been advised to disassociate himself from the kite flying of Mr Katju. And rightly so, for has Kautilya not said that, “It is the power of punishment alone, when exercised impartially in proportion to the guilt, and irrespective of whether the person punished is the King’s son or an enemy, that protects this world and the next.” In the present case, nothing could be more apt, for even those arguing for Mr Dutt would concede, that, he had been treated fairly, if not sympathetically, and his sentence is the minimum prescribed under the law.

A Crime of Passion

Posted in India, Law with tags , , , , , , , , , on September 30, 2012 by salaamreaders

Kawas Nanavati

It was while studying at law school, that, I first came across the Nanavati case. A naval officer had shot his friend dead over the said friend’s proximity to his wife and turned himself in to the police. This was in Bombay in 1959. The prosecution alleged that it was a case of premeditated murder while the defence pleaded a sudden and grave provocation for the act. The case had gained widespread media attention, unprecedented in those days. Here was a handsome naval officer, obliged by duty to be absent frequently from his home, wronged by his own wife and friend! There couldn’t be two guesses regarding who the public thought was the villain. It did not help either that the wife was English. It was only natural for the Navy to close ranks behind Commander Nanavati, for how could martial men countenance such a slur on their izzat? And did their brother-in-arm not conduct himself like an officer and a gentleman by redeeming his honour and submitting to the law? The Parsis were livid. How could he, such a nice dikra, be accused of murder when his wife was cheating on him while he was protecting the nation? Blitz, then a popular weekly tabloid ran a tireless campaign for him.  It was no surprise when the jury did not find him guilty of murder. The trial judge, however, found their opinion perverse and eventually the accused was convicted and sentenced by the higher courts.

As law students, we were looking at the legal issues only.  We debated long, and hard, on whether the facts established premeditated intent (he had dropped his family at a cinema before going to his ship for his revolver and then proceeding to his friend’s house to ask if he would marry his wife)? The alternative theory was that the act would fall in Exception I to section 300 of the IPC, if it could be proved that it was due to a sudden and grave provocation (his friend, on being confronted over the alleged affair had retorted, “Will I marry every woman I sleep with?”).  The case was important for another reason also. It resulted in abolition of the jury system in India as it was thought that the jury could be swayed easily by media publicity.

Sylvia Nanavati

Whatever be the legal position, there is no gainsaying that the unfortunate case is a tragic reminder of how emotions, lurking deep beneath the facade of our seemingly happy lives, can sometimes overpower our reason. Here were three well-educated, respectable and prosperous persons. It did not appear that they should be lacking in anything. Then what went wrong in their lives? Sylvia, the wife, was apparently deeply in love with Prem Ahuja, the deceased who was also a friend of her husband. She wrote to him in one of her letters that “…Don’t ever let me go, my darling and please don’t ever stop loving me. I do crazy things sometimes and can’t always show you how much you mean to me, but one day, my love, I will show you that you are more than life to me and dearer to me than anyone…” It was a long letter, every paragraph showing how much she loved him. In other circumstances, such deep feelings of love would be considered incredibly romantic, even noble, but here they had engendered such tragic consequences!

It was much later that Commander Nanavati was to write to someone that “To you……my case is a story of some interest. To me, what happened is a sorry part of my life which I wish to forget…..” How poignant! It is not only because of the legal wrangle that the case has stayed with me, refusing to go away from the mind. The frailty of human relationships it demonstrates, sometimes wrenches the heart too. What became of Nanavati, Sylvia and their children? Who can say who the victims really were?

Credit: The pictures from http://en.wikipedia.org/wiki/KM_Nanavati_v_State_of_Maharashtra and quotations from www.hindustantimes.com are gratefully acknowledged.

In Which the Long Arm of the Law Catches up with Them!

Posted in humour, India, Law with tags , , , , on December 1, 2011 by salaamreaders

Boy meets girl. Boy takes the girl to a park. And never the twain shall meet again. At least, in a park in Ghaziabad! And one may well wonder, why? Because, the law is on the prowl, and how!

Imagine, being out with your boy friend on a date and suddenly finding the law- in all its majesty- looming large over the two of you, demanding to know your business in the park! The prospect is likely to douse the most romantic of your feelings and by the time it finishes off with you, the boy friend would be quivering like the proverbial quail! That he would have gained a few inches of quadriceps, thanks to the dead squats he has been made to perform, would have been his only bonus.

If news paper reports are to be believed, the law, it seems, was out with full force in Ghaziabad  to “provide maximum security for women” and to “stop innocent girls being trapped by boys with evil motives” for it was customary for eve-teasers to stand outside girl’s schools and colleges “to trap unwitting girls”. The top brass of the district police were reportedly perturbed at the rampant incidents of eve-teasing and had ordered “Operation Majnu” to control it. The result was that the police swooped down, with television crews in tow, on unsuspecting couples cavorting in public parks and generally roughed them up. That the police were led by a woman officer was only incidental! And that the media, gleefully, splashed pictures of the hapless couples, across their front pages, were only to be expected in these present times of the freedom of the press.

It would, of course, not have occurred to the police, that, the only circumstances warranting their intervention in the matter were if the girls were present without their consent or the parties involved were engaged in indecent or obscene acts. Such niceties are, in any case, not expected from a police force which, perhaps, admires Charles’ Dickens! Remember him in Oliver Twist? Did he not say that the law was an ass?

Would you rather risk your girl friend’s ire than taking her out and be caught with your pants down in a park doing the squats? I agree, it’s not much of a choice, but give it a thought, though.

Better Safe than Sorry?

Posted in India, Law with tags on February 5, 2010 by salaamreaders

With our sexual mores changing significantly in the past few years, sex outside marriage has gained certain social acceptance. Incidents of live-in relationships, pre-marital sex and adultery appear commonplace now. Behaviour once considered socially undesirable, even deviant, is increasingly being thought of as ‘cool’. But beware, the Delhi High court does not approve and if their recent ruling is any thing to go by, promiscuous men may even land in jail. They just have to fall foul of their girl friends! Here’s how.

It has been reported, that, the court has ruled recently that sex outside marriage amounted to rape. It denied anticipatory bail to a man for this reason. The bare facts of the case were, that, a man engaged to a woman had repeated consensual sexual intercourse with her. When he refused to marry her, she filed a police case alleging rape. The court held, that, sex on the basis of a false promise of marriage amounted to rape. Normally, the Indian law defines rape as sexual intercourse when it is:- 

i)          Against the will of the woman;

ii)         Without her consent;

iii)         With her consent, if she has been put under fear of death or hurt;

iv)        With her consent when the man knows that he is not her husband but she believes he is;

v)         With her consent, if it is obtained under unsoundness of her mind or intoxication etc; and

vi)        With her consent if she is less than sixteen years of age.  

Even consensual sex, therefore, is rape under the last four conditions. Now, the court has added another category-when consent is obtained on a false promise of marriage-when it will be considered as an incident of rape. The new expanded meaning has been taken, ostensibly, for protecting innocent girls from victimization and exploitation by unscrupulous and mischievous persons who take undue advantage by promising marriage with them. 

Normally, the accused in a rape case is required to prove his innocence, as the victim’s statement is taken to be true. This is so as it is generally believed, that, no Indian woman would level false charges for fear of social ridicule. In the present case, since the two were engaged, it was not difficult to draw an inference, that, she might have consented because they were in any case to be married. But it may be difficult in other cases to prove whether a false promise was held out or not. If a woman, therefore, alleges rape on this ground, the boy friend may land in serious trouble.

So if you would rather be safe and not sorry-ABSTAIN.

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