Abetment of suicide, Rathore and 3 Idiots

Smirk. Yes, it was that disgustingly mocking smirk on Rathore’s face that made the nation turn around and say collectively, “Wait, you dirty old man, we’ll wipe that sickening smile off your shameless face!” And a public trial began, wherein he was promptly held ‘guilty more-than-charged’. The media zoomed into Rathore and put him under such dazzling light with such consistency that he could neither hide, nor could his more-that-considerable political clout extend enough protection. Finally, charges of ‘Abetment of suicide’ under Section 306 of the IPC were slapped against Rathore. The question now is whether or not the charge can stand legal scrutiny in a court of law.

Getting Rathore convicted for abetment is not going to be a cakewalk not because he is influential but because establishing a charge of abetment of suicide is itself quite tough on account of the requirement of the law to prove a definite ‘guilty intention’. If there is nothing to show that the accused intended to abet suicide of the deceased, the mere fact that it was something that the accused said or did that prompted the deceased commit suicide is not sufficient in itself to prove abetment beyond reasonable doubt.

It must be proved that the accused knew that by saying or doing what he said or did, he was very likely to make the deceased inclined to inflict self-harm and he should have, at the very least, demonstrably done nothing to stop it, even if it could not be shown that he actually ‘intended’ the deceased to commit suicide and what he said or did was directed at furthering such intention.

To make all the right connections in a court of law in such cases is much tougher than it might seem at first because the mental states of both the deceased as well as the accused have to be considered and ascertained through evidence, which is certainly not easy. Furthermore, it must also be shown that the accused knew the deceased well enough to predict his or her reaction under the conditions in question. The only way around this is to establish that the circumstances created by the accused were such that the majority of people would commit suicide, which is even harder to prove.

Interestingly, 3 Idiots, recent Bollywood blockbuster starring Aamir Khan, touches the theme of abetment of suicide in two different sequences. An engineering student by the name Joy Lobo commits suicide when the Principal of the college refuses extension for the submission of the project thereby frustrating Lobo’s attempt to graduate that year. At the cremation, Ranchordas Shyamaldas Jhanjar alias Rancho, played by Aamir Khan, comes up to the Principal and remarks that it was not suicide but ‘murder’ implying that Lobo was pushed to kill himself by the frustration resulting from unbearable academic pressure. In similar vein, the daughter of the Principal, also accuses her father of having ‘murdered’ his own son by forcing him to attempt entrance tests to the engineering college instead of allowing him to study literature, which he so ardently wanted to, and thus pushing him to commit suicide.

Of course, neither is murder because they are not homicides, but it is strongly suggested that these were instances of abetment of suicide, which, again, they are not for want of the legal prerequisite of intent on the part of the Principal.

The Principal points out to Rancho that he could not be blamed if a student fails to take the pressure of studies, which all other students do. Naturally, the intention of the Principal is to make the students study harder and not to push any of them to commit suicide. And if a student does so, it is because of his own inability to adapt and respond. Nobody else can be blamed for it unless the intent to abet suicide is shown. It is much the same thing that the Supreme Court said in State of West Bengal v. Orilal Jaiswal, (1994) 1 SCC 73:

If it appears to the Court that a victim committing suicide was hypersensitive to ordinary petulance, discord and difference in domestic life quite common to the society to which the victim belonged and such petulance, discord and difference were not expected to induce a similarly circumstanced individual in a given society to commit suicide, the conscience of the Court should not be satisfied for basing a finding that the accused charged of abetting the offence of suicide should be found guilty.

Again, recently, in Gangula Mohan Reddy v. State of Andhra Pradesh, Criminal Appeal no. 1301 of 2002 (Decided on January 5, 2010), insisting on the presence of clear mens rea the Supreme Court ruled:

The intention of the Legislature and the ratio of the cases decided by this court is clear that in order to convict a person under section 306 IPC there has to be a clear mens rea to commit the offence. It also requires an active act or direct act which led the deceased to commit suicide seeing no option and this act must have been intended to push the deceased into such a position that he committed suicide.

In SPS Rathore case, it is quite clear that the deceased was harassed by all means and Rathore used all his influence to ensure that life was made a living hell for her and her family, which led her to commit suicide. The harassment and suicide are, therefore, connected. However, the legal question is whether or not Rathore intended the harassment to lead to suicide by the deceased.

A related question that is sure to arise is what did Rathore stand to gain from the death of the deceased? What could possibly be the motive to abet suicide? Perhaps, Rathore wanted to harass the family into silence. What additional purpose could the deceased’s death serve? Unless and until the investigators find convincing answers to these questions well supported by concrete evidence, Rathore’s conviction for abetment of suicide is very likely to remain a fond dream.

Kurbaan: Unapologetic, glossless take on terrorism

The opening credits with flashing images of wires, electronic devices, detonators and a swinging yellow bulb in a dingy workshop supported by thumping musical beats for a background score set the pace of the movie right at the onset and prepare the viewer for the gory things to come. The credits end with the dying glow of the bulb’s filament that soon sinks into visual non-existence leaving cold, deathly darkness behind hinting at the sad and perplexing reality of our violent times.

Taut narrative, competent performances, careful directorial handling and sleek packaging has ensured that the final product is worth more than a watch. However, the real strength of Kurbaan lies in its uncompromising approach to its material. It does not shy away from projecting the coarse truth of Islamic fundamentalism and what it has come to mean in the modern times, particularly in the post-9/11 era.

The movie opens on a sunny winter day at a bright India Gate, where Saif and Kareena are trying to hire a taxi each. Saif waves, a taxi stops, and the same old story of one taxi, two people with no concept of sharing follows. Kareena forces her way into the taxi and Saif pretends to be sick to get the taxi back with outsmarted Kareena left behind, fuming. But it turns out that they had the same destination, as they are ‘professors’ in the same college. Very predictably, Saif apologizes and then coffees follow at the CCDs (“A lot can happen over a coffee”). Quite a lot happens, and a bit of it spills over into college staffroom, too. Library too, I faintly recollect, finds its share of romance. Kareena is from New York and had come to India on account of her father’s failing health. With the betterment in her father’s health and an offer from the educational institution she had been working for earlier, the prospects of her return to New York is all too real. Death of a robust romance is, thus, imminent unless one of the two values the relationship enough to let go of his or her personal ambitions to some extent. Saif is man enough to happily volunteer. Next comes the marriage question, and Hindu-Muslim issue comes to the fore, but is promptly resolved.

Avantika Ahuja (Kareena) marries Ehsaan (Saif) to become Avantika Khan and the couple head to New York to start a new life. They find a house in an Indian neighbourhood, Ehsaan lands a lectureship position and just when it seems that the happily-ever-after has arrived, the neighbours invite the couple over for dinner. One thing follows another and the day Avantika learns of her pregnancy, destiny delivers a heartbreaking shocker. She learns that her husband had used her as a tool to get into the United States legitimately, and that she had been an instrument right from the beginning, which also meant that the ‘loving Ehsaan’ was a mask to cover the cold face of a dreaded assassin. The family in the neighbourhood that the couple gets close to is a sleeping cell of a terrorist network, which Ehsaan is an integral part of.

Like any woman in her situation, she feels betrayed and used by none other than the one she loved and trusted, and the one whose love she treasured the most. What’s even more shattering is that the love was nothing more than a long-standing, consistent fraud through and through.

Besides being torn by an acute sense of betrayal, Avantika (Kareena) also comes face to face with the merciless world of terrorism, where Jehad is the only meaningful word. Of course, she sees no justification for blowing the innocents to bits, and is determined to have the terrorist cell neutralized. Her clear disapproval of their objective and ways is too blatant to escape notice. The leader of the group, Bhaijaan (brilliantly played by Om Puri) sees her as too great a risk to be kept alive and ticking, but Ehsaan wouldn’t allow any harm to her. Obviously, to Ehsaan Avantika is more than just the means to an end, for one doesn’t get that protective about a mere instrument. Ehsaan, on the other hand, is all of a sudden an alien to Avantika.

He is a dreaded assassin well trained in armed and unarmed combats, is well versed with the use of explosives and has been sent to be a part of a sleeper cell in the US, we are informed through the discussions in the FBI war room.

Therefore, the movie deals thenceforth deals with two conflicts. One is at the personal level of the protagonist while the other one is the larger, general conflict between two violent sides – the terrorists and the State.

The problem with using force – no matter how legitimate and justified – is that it tends not only to destroy and disperse but also to unite and concretize. Terrorism is not a movement or objective. It’s a tool. Therefore, all kinds of terrorism are alike. It, thus, follows that each kind has its own remedy. The force being used against terrorism is massive, which is also working to unite the terrorists in the same proportion because using bloodshed to stop bloodshed is like using petrol to extinguish fire.

The legitimacy of war against terrorism flows from its objective to protect innocent lives. If anti-terror operations start resulting in the loss of innocent lives on the other side, the legitimacy would naturally wither away. If ‘collateral damage’ is pleaded in defence of such loss of lives, the same can be an equally reliable defence for the terrorists as well, for they could also argue that they are fighting the State and its policies, and the innocent lives lost is ‘collateral damage’.

The father of Riyaz (Vivek Oberoi) – played by Kubhushan Kharbanda – asks as to how come being loyal to one’s religion was wrong or questionable. He is actually asking if it is right for the Americans to protect their people and their interests through force and violence, how is it wrong for the Muslims to protect their people and their interests through the same means? And innocent lives are being lost on both sides.

Furthermore, it is the democratically elected US government that wreaked havoc in Iraq and Afghanistan. So, it is technically carrying out the wishes of the American people. How, then, is a common American completely innocent, even if not completely guilty? On the other hand, Osama Bin Laden and Saddam Hussein were not elected representatives of the people. So, a common Iraqi or a common Afghan is more innocent than a common American.

Besides, as a matter of fact Iraq was invaded without provocation, and the civilian body count so far stands somewhere between 94,554 and 103,162. How do we explain that?

These are tough questions and there are no easy answers. But these so-called ‘Islamic terrorists’ are the children of these unanswered questions. IRA and LTTE fall within the description of terrorist organizations, but the likes of Al Qaeda are different and far more dangerous monsters altogether. We can only ignore the truth and the hard questions at our own peril.

Originally written for and published in LAWYERS UPDATE [January 2010 Issue; Vol. XVI, Part 1]

Wanted: Prabhu-Salman joint debacle

Prabhudeva attempts directing. Salman tries acting. Both fail, and call the mess Wanted. My expectations with Wanted were fairly low anyway, and the movie didn’t disappoint me on that front.

To begin with, Superman Salman Khan looks a little too beefy with bad muscle definition to be performing the stunts he does in the movie. His movements are, apparently for that reason, laboured and least bit convincing. Besides, the Matrix-kind semi-frozen action sequences are now a bit too oft-repeated and are now used with too little discretion to hold interest.

The movie treads the well-beaten track and mixes several formulae to come up with a stale concoction that expects the viewers to don their masala-movie hats and doggedly keep the real world out of the picture so long as they watch the Khan-uixotic circus.

Khan plays Radhey, who, despite some shades of the Tere Naam Radhey, is no lover boy but a hardcore contract killer who works for just one thing – money. He is a one-man army of the Rambo kind. He kills not only mercilessly and remorselessly but also with unusual brutality.

The crime backdrop is a regular one with two warring groups, one of which is eventually joined by Radhey. And it is later revealed that he is an undercover cop and an IPS officer. So, Radhey is no uneducated hooligan, but an able police officer doing some cleaning up. The problem is that no IPS officer has even been known to have gone undercover in India.

Undercover operatives are police officers hardened in the ways of the criminals, who are well-conversant with the underworld and the world of organized crime. In short, they are the closest thing to a real criminal without being a criminal. Minor crimes, like stealing and fighting, are pardoned and covered up, but no undercover operative is allowed to kill, or cause harm to any innocent person or even a criminal except in self-defense.

The skills and expertise of an IPS officer is of no use to an undercover operative because he is not to deal with matters of police administration or try to formulate a new crime-fighting mechanism or improve upon the old one. After all, John Rambo is a war-hardened solider and not a General with the ability to strategize and execute a military operation. He fights with his raw, animal instincts and does not believe in the talk of ‘change’ and reformation. If truth be told, educated brains are often incapable of the studied indifference to crime that is an indispensable requirement for an undercover operative. So, it is useless to try using an IPS officer for the job these officers are just not fit for. Besides, why risk a high-raking officer anyway?

Furthermore, Indian police depends far more on informants than on undercover operatives for intelligence on organized crime, and it works perfectly well because organized crime is not as advanced a threat in India as in the West. So, much of the fodder for Indian undercover movies actually comes from Hollywood. Kaante was the last successful undercover cop movie, and was an almost frame-for-frame remake of Quentin Tarantino’s much-appreciated Reservoir Dogs. Doubtlessly, it was a superbly made and neatly packaged movie with all technical details taken good care of. Of course, none of that is to be found in Wanted.

When it comes to movies on undercover operatives, Donnie Brasco is one of the most successful and realistic ones ever made with Pistone alias Brasco very convincingly played by – who else? – Johnny Depp. Based on the undercover life of the world’s most successful undercover agent in history, Joseph Dominick Pistone, the movie religiously documents Pistone’s infiltration of New York City’s Bonanno Crime Family, which ultimately led to more than 200 indictments and over 100 convictions.

Pistone became a Special Agent of the FBI in 1969, and was transferred to New York in 1974. It was in 1974 that he went undercover the first time and infiltrated a gang that stole 18-wheel trucks and bulldozers. The infiltration of the gang made the arrest of 30 criminals possible.

A great deal of background check was undertaken before Pistone was given the name ‘Donald Brasco’, which became the well-known Donnie Brasco over a period of time. He went undercover as a jewel thief. The undercover operation was originally planned to run for six months and was not intended to penetrate the mafia, but only to investigate people who were fencing stolen property from a great number of truck hijackings taking place in New York during that time. But Pistone ended up penetrating the mafia deep and the operation stretched for as long as six years.

Naturally, when it was revealed that one of their own, who they knew as Donnie Brasco, was actually an FBI undercover operative Pistone, the gangsters were furious and a $500,000 prize was announced for killing Pistone. But none succeeded and Pistone continues to live to this day.

Unlike Radhey, Pistone did not kill anyone, and did not commit any major offences. What he did at best was to stage crimes with the help of the police and other authorities so as to convince the mafia of his being a genuine criminal without causing any real harm to the common man.

To kill willfully is a crime unless done in self-defence, and killing criminals or murderers is no less a murder than killing innocent citizens. No undercover operative of an investigation agency is ever ‘licensed to kill’. And normally Hollywood plays it close to reality, which is why in Kaante – it being a remake of Reservoir Dogs – the undercover agent carefully and cunningly avoids committing any crime himself and does not kill on any occasion except to save the life of a police officer, and killing to protect someone else’s life is covered within the legal definition of ‘self-defence’.

But Wanted is a different ballgame all together. Director Prabhudeva takes as many liberties as possible with the reality and packs in brutality reminiscent of Ghajini with no explanation of the kind that is central to Aamir’s character in Ghajini. Radhey is neither a convincing contract killer, nor a believable IPS officer and, what’s worse is that he also does not stand between the two. He is just Salman Khan and this time it’s not just his ever-questionable acting skills to blame but also Pradbhudeva’s failure at creating a character on the screen. The same Salman was far more convincing as the other Radhey in Tere Naam.

So, Wanted is a miserable failure of attempted Prabhu Tarantino and Salman Depp.

Originally written for and published in LAWYERS UPDATE [November 2009 Issue; Vol. XV, Part 11]

Public Enemies: Fledgling FBI’s historical struggle with John Dillinger

With Johnny Depp playing the flamboyant John Dillinger under the direction of Michael Mann, one could easily expect a sleek, visual treat, which Public Enemies certainly is. However, the movie does not go beneath the very surface of the times it deals with. It does not tackle any issues other than the robberies, love life and death of John Dillinger. The movie has been criticized by some critics for not dwelling upon the Great Depression at sufficient length. But that is possibly because Dillinger was not among those criminals who could be seen as product of their times. The Depression did have some impact on his life but was not really instrumental in making him the extremely dangerous criminal that he was.

Dillinger was a natural rule-breaker. He had problems with the authority in the school and was known to bully younger kids. As he grew up his problem grew with him and he frequently found himself at the receiving end of the law. Joblessness caused by the Great Depression made it worse for him although it is unlikely that he would have been a law-abiding citizen even otherwise. However, the movie does not deal with the circumstances that went into the making of Dillinger, but zooms into the thick of Dillinger’s escapades opening with the jailbreak engineered by Dillinger to free some of his gang members.

It was in the 1930s that John Dilligner perpetrated around two dozen robberies and killed several policemen. He was swift and left no leading clues behind. The police with their conventional methods found it increasingly difficult to get anywhere close to him. He struck at will making a mockery of the law enforcement agencies. The pressure on the government to apprehend Dillinger kept mounting by the day. Dillinger operated across the states, which meant that to effectively deal with a threat as potent as him, the authorities needed a force that could keep up with this movement. So, a federal investigation was the need of the hour. Therefore, in a way, FBI owes its existence and its present day influence to the likes of Dillinger.

The task of putting together a federal investigation agency came to a young bureaucrat called J. Edgar Hoover. He roped in his field commander, Melvin Purvis, who having joined the Bureau of Investigation in 1927, was given the charge of Chicago office of the Bureau in 1932 in view of the daring crimes that were being committed by Dillinger and his gang during that time.

Public Enemies focuses on the struggle of the Bureau of Investigation, which later became the FBI in 1935, to get to the criminals like “Baby Face” Nelson, Kate “Ma” Barker, Alvin “Creepy” Karpis, George “Machine Gun” Kelly and, above all, John Dillinger.

A shrewd criminal becomes a much greater threat when he catches the fancy of the people. Dillinger was not only a dangerous bank robber with no qualms about killing policemen, but was also gradually notching up in public estimation with the people beginning to see him as a modern day version of Robin Hood.

Although the movie keeps Dillinger at the very centre but still manages to indicate that apprehending Dillinger involved a thorough revision of the procedure and investigative techniques that the investigators of that time followed. At one point in the movie when the Bureau fails to get hold of Dillinger, who manages a narrow escape leaving behind a couple dead officers, Melvin Purvis tells Edgar Hoover in no uncertain terms that if more seasoned lawmen and investigators were made available to him, he would prefer relinquishing his position because he could not have his men slaughtered. Hoover, on the other hand, was of the opinion that young officers could do a better job of hunting Dillinger down. But Dillinger was not a deer who could be chased out of breath and taken down.

Therefore, the bureau had to employ an organized approach to the investigation. The movie indicates that gradually it dawned upon the investigators that a manhunt for some like Dillinger did not just call for following the leads and conducting raids but also required skilful application of detective techniques. While addressing his staff at Chicago office, Purvis underscores the importance of employing ‘scientific approach’ to the investigation if they were to succeed in nabbing Dillinger. By ‘scientific technique’ Purvis meant a systematic approach in which, based upon the available information, a certain hypothesis or theory is evolved, which serves as the starting point for the elimination of possibilities until a time comes when there are only two or three highly probable positions. This kind of approach is adopted not only to proceed with the clues but also to reconstruct the stages in the commissioning of a crime.

It was during this time that an organized information storage system was evolved because Hoover emphasized the importance of document information and progress so that the record is readily available for anyone to peruse and get a hang of the work done in any particular case. It seems that the information storage system gave birth to the criminal profiling that the FBI is now well known for.

However, the ability to get close to such dangerous criminals as Dillinger is one thing and to arrest them is quite another. Therefore, it was also felt that field operations were equally important and these operations required a different set of skills than investigation. So, field officers entrusted with the duty of apprehending criminals were differently trained for the purpose. Earlier, the investigation officers doubled as the arrester, which is still the case in normal police investigations.

Thus, during the time of Dillinger and on account of his daring escapades, the Bureau of Investigation had to take a hard look on its own workings and had to make major, necessary changes. The movies does hint at all of the changes made but it keeps Dillinger at the center at all times.

Public Enemies is the movie adaptation of Bryan Burrough’s non-fiction work, Public Enemies: America’s Greatest Crime Wave and the Birth of the FBI, 1933–34, and the movie religiously follows the book.

On July 22, 1934, as Dillinger exited Biograph Theatre after watching Manhattan Melodrama, he was nearly surrounded by the bureau agents, and he moved to pull his gun out three agents opened fire. Dillinger was hit thrice. He was hit in the chest twice, but the fatal wound was caused by the bullet that entered the back of his neck and exited right below his right eye. Dillinger fell on the ground, face first. In the movie, Dillinger mumbles lying in the pool of his own blood, “Tell Billie for me, ‘Bye bye Blackbird.’”

However, as per FBI records Dillinger died without a word, which is very likely in view of the nature of the bullet injuries.

Originally written for and published in LAWYERS UPDATE [September 2009 Issue; Vol. XV, Part 9]

Consent to abort: Supreme Court in error?

The Indian Apex Court has ruled that a physically major and mentally minor girl, who has no concept of sexual intercourse, pregnancy or motherhood, has the right to decide whether or not she wants to give birth to a child conceived of rape.

Since under the Medical Termination of Pregnancy Act, 1971 (MTP Act) pregnancy cannot be terminated without express consent of the mother, the moot question was whether a mentally retarded woman is capable of consenting to the termination of pregnancy or not.

High Court of Punjab and Haryana had had an Expert Body to obtain an independent expert opinion on the issues in question. The Expert Body concluded that victim suffered from mild to moderate mental retardation, was “incapable of making the distinction between a child born before or after marriage or outside the wedlock” and was “unable to understand the social connotations attached thereto.”

Therefore, the victim is incapable of forming an opinion in the social context, which means the social acceptability or otherwise of the child has no relevance for her. A normal woman may undergo abortion solely on account of the social stigma. So, the woman in question is simply incapable of applying a decisive criterion that a normal woman in her circumstances is very likely to. The incapacity to take into account all relevant factors indicates that the victim’s willingness to deliver the baby is not an ‘informed decision’, and is, for that reason, deficient. And since, in this case, ‘willingness to deliver’ necessarily means ‘not consenting to abort’, it follows that the latter is also deficient. One could argue that if the victim was capable of fully understanding her circumstances, she would have elected to abort because that is what many – if not most – of the women would do in her situation.

Furthermore, the pregnancy in this case is not just outside wedlock but is a result of forced intercourse. Regarding the victim’s understanding of sexual act, the Expert Body concluded that:

She has a limited understanding of the sexual act and relationship and even the concept of getting pregnant. She did not volunteer for sex and did not like the sexual act.

Since she has limited understanding of the sexual act and pregnancy, she cannot possibly connect the rape and the pregnancy as cause and effect, which means she has no understanding of the true nature of her pregnancy itself, much less of its social connotations. This does not mean that on account of her mental retardation the rape was not as mentally devastating to her as it normally is. Just that in the victim’s mind the rape and the pregnancy are two distinct, unconnected events. Human conception of any event is incomplete and inadequate unless he has some idea of the cause. Furthermore, when it comes to children born of rapes, the ‘cause’ of pregnancy is the single most important factor that determines whether or not the victim consents to abortion. How far it weighs with the legislature in this regard is quite evident from Explanation 1 to Section 3 of the MTP Act, which reads as follows:

Explanation 1. − Where any pregnancy is alleged by the pregnant woman to have been caused by rape, the anguish caused by such pregnancy shall be presumed to constitute a grave injury to the mental health of the pregnant woman.

Therefore, in the opinion of the legislature pregnancies caused by rape fall in a class different and distinct from ‘unwanted pregnancies’ of other kinds, and the victims in such cases would in all probability want to undergo abortion on account of the cause of the pregnancy alone. But in this case the victim is incapable of factoring in the cause of pregnancy making her ‘willingness to deliver’ or ‘unwillingness to abort’ inherently deficient.

Therefore, if the Court was to step into the shoes of the victim employing the test of ‘Substituted Judgment’, it would have found ruling against abortion extremely difficult. However, the Court was of the opinion that it was not a fit case for the application of the abovementioned test for want of complete mental incapability on part of the victim. In this regard the Court observed:

The application of the ‘Substituted Judgment’ test requires the court to step into the shoes of a person who is considered to be mentally incapable and attempt to make the decision which the said person would have made, if she was competent to do so. This is a more complex inquiry but this test can only be applied to make decisions on behalf of persons who are conclusively shown to be mentally incompetent. In the present case the victim has been described as a person suffering from ‘mild mental retardation’. This does not mean that she is entirely incapable of making decisions for herself. The findings recorded by the Expert Body indicate that her mental age is close to that of a nine-year old child and that she is capable of learning through rote-memorisation and imitation. Even the preliminary medical opinion indicated that she had learnt to perform basic bodily functions and was capable of simple communications. In light of these findings, it is the ‘Best Interests’ test alone which should govern the inquiry in the present case and not the ‘Substituted Judgment’ test.

The Court seems to have attached undue weight to the expression ‘mild mental retardation’ without considering that it is a relative expression incapable of quantifying retardation. She is not ‘mentally incompetent’. Understood. But that does not answer any relevant questions either. Simply because she has ‘learnt to perform basic bodily functions’ and is ‘capable of simple communications’ does not make her mentally competent to take a decision pertaining to unwanted pregnancy. She is mentally 9-years-old, and this is the only age relevant to the question of ‘consent’. Her physical age is of absolutely no consequence in this regard. So, the question actually is if a 9-year-old girl competent to ‘consent’ in law? Under the MTP Act the consent of a minor is irrelevant. In this case the Court could – and should – have acted as the guardian to decide on behalf of the victim. The rationale put forth by the Court against the use of ‘Substituted Judgment’ is, without doubt, severely inadequate.

This does not mean that no ‘mentally retarded’ woman is competent to ‘consent’. A 35-year-old woman whose mental age is around 20 years is competent to consent under the MTP Act despite being mentally retarded. So, mental retardation alone does not render someone incompetent to consent. This is where the distinction between ‘mental retardation’ and ‘mental illness’ becomes relevant under the MTP Act. The Court, after analyzing the distinction between the two expressions, concluded:

While a guardian can make decisions on behalf a ‘mentally ill person’ as per Section 3(4)(a) of the MTP Act, the same cannot be done on behalf of a person who is in a condition of ‘mental retardation’. The only reasonable conclusion that can be arrived at in this regard is that the State must respect the personal autonomy of a mentally retarded woman with regard to decisions about terminating a pregnancy.

This is not a very correct understanding of the legislative intent because, as discussed above, the distinction between ‘mental retardation’ and ‘mental illness’ exists simply because if one’s mental retardation does not render one incapable of consenting to an abortion, the woman’s being mentally retarded has no bearing on the issue at all. And if one’s mental retardation makes one incapable of ‘consent’ for want of mental maturity, one would automatically be treated as a minor and the consent of the guardian would be necessarily required. The issue of ‘personal autonomy of a mentally retarded woman’ does not arise because the ‘mentally retarded’, so long as they are capable of making an informed reproductive choice, do not make a distinct class for the purpose of the MTP Act, as they stand in the same position as any normal person despite their mental retardation.

The other two factors that weighed with the Court were that the victim was very willing to give birth and was physically capable of delivering the baby. Both of these factors are irrelevant in the present case, as the victim is mentally a minor. A girl of around 15 years of age, born, brought up and educated in a modern day metropolis is physically capable of giving birth and may also be willing to do so with a far better understanding of the nature of her pregnancy and the consequences of delivering and aborting compared to the victim in the present case. However, no amount of willingness and physical ability to give birth would be able to substitute the legal necessity of the competence to consent.

The Court also said:

It can also be reasoned that while the explicit consent of the woman in question is not a necessary condition for continuing the pregnancy, the MTP Act clearly lays down that obtaining the consent of the pregnant woman is indeed an essential condition for proceeding with the termination of a pregnancy.

Incapacity to consent works both ways. The one incapable of consenting to abortion is necessarily incapable of ‘consenting’ to giving birth because ‘consent’ implies the ability to choose consciously. So, if one is only capable of saying ‘yes’ and not ‘no’, the ‘yes’ is meaningless.

Since the victim in this case was demonstrably incapable of making an informed decision, there was no way the Court could avoid employing ‘Substituted Judgment’ to decide if a normal woman in the circumstances of the victim would choose to abort or keep the baby. The Supreme Court could have decided against abortion in this case for any reason other than ‘lack of consent’ to abort, which is where it seems to have made a grave error.

Originally written for and published in LAWYERS UPDATE [November 2009 Issue; Vol. XV, Part 11]

Write and tweet ‘party right’

Shahi Tharoor tweeted ‘Cattle Class’ and the holy cows sulked. And then hit back with the claws in their hooves. Obviously, Mr. Tharoor had not anticipated such a backlash from what appeared to him a docile species capable of baying but never biting or clawing. And then he realized his folly.

But one thing they got bang right. Mr. Tharoor has little, if any, understanding of Indian political scene. He doesn’t know that those who climb the political ladder land up on the side of the ‘classes’. Masses, he might know, the political ‘class’ doesn’t have the first idea about. Cattle don’t take offence of being called cattle. It is those who see themselves as non-cattle who would fume. Tharoor should take heart in the fact that the classes are blissfully nonchalant about his tweet (the majority doesn’t know what it is in the first place).

Take a peek at the General compartment of any train run by Indian railways and there would be no doubt, if you ever had any, that Tharoor has better understanding of Indian conditions and the ‘cattle class’ status of the masses than most of the leaders would admit having. So, the Holy Cows are simply insecure about the stupor they engineered over the decades patting the ‘cattle class’ and telling us cattle that we were mighty lions, and we feigned our sleep and kept nodding sleepily. Trying to roar was a waste of energy. So, we let them believe that we believed them.

The actual ‘cattle class’ was least bit offended because finally there was a minister who had uttered the truth, and he found his political brethren holding him by his neck for calling the bluff. And poor, bewildered Tharoor twittered an apology. Interesting, indeed. And we have a collective grin on our collective face.

Just a little while ago Tharoor was caught on the wrong political foot when in apparent contravention of the ‘austerity drive’ launched by Congress, he was found living in a five star hotel while his official residence was under renovation. Of course, he was footing his own bills, but that’s immaterial. He was spending loads, which he is not supposed to in ‘solidarity with the Holy Cows’. All members of the party must conform to one thought, one way of life and one history. And they should have just one view on all things and all men – the one approved and endorsed by the party. Live modest and write only such books that help party propaganda. Did we ever trust our leaders? Okay. So, this doesn’t make much difference anyway. All we have to do is modify our understanding a little. So far we did not believe what they said. Now, we would not believe what they write as well because what they write – and tweet – would be ‘party right’, and thus questionable and untrustworthy.

Raj ‘Tyson’ Spears does it again

Raj Thackeray always manages to come up with some very ‘innovative’ ideas when it comes to his favourite sport of North Indian Bashing, which he continues to enjoy enormously and practices tirelessly. Of course, like all sportsmen, he too wishes to make a professional career out of it, and by some estimation he is already half way on the road. So, one could easily picture a ‘Bihari’ or a ‘Bhaiya’ hanging upside down in the specially designed gymnasium, wherein this great Maratha warrior, Raj ‘Tyson’, would practice his art and science of Maratha elevation through elimination of every thing ‘North’. I am not sure if I would be surprised to hear ‘Tyson’ demand that North be altogether dropped and there be only three directions instead of four.

This time the fellow has come up with his own theory of development. No, it does not tell you how to do about it, but points out what has been wrong all this while. The only thing that has ever gone wrong with the Maratha-land is the North Indians in Tyson’s opinion. He says that Maharashtra has been lagging behind its neighbouring states because of the North Indian population. It would be relevant to point out that all this while when Maharashtra was developing North Indian were there all along. And even if they did not contribute to its development, which is hard to digest, they did nothing to retard it. How come they suddenly started pulling the cart the other way? Of course, Tyson has no concept of economic saturation. There are times when a developing region would undergo a slowdown. It is natural and singling out any one factor to blame it on is – for want of a more appropriate word – stupid.

As for the security agencies employing North Indians more than the Marathi people, it is inconceivable that these agencies have a regional bias. They are in business and they would things that and employ people who make the business work better. They simply do not have the luxury of biases. They might be more inclined to employ people from North India because these people have migrated to Maharashtra in search of opportunity and would want to make the most of it. So, they would naturally be hardworking and dedicated because work and money are the sole purpose they are there. They do not have big egos and they are there as absolute ‘nobodys’ and they know it. As for the residents of the place – any place actually – tend to have a sense of pride and belonging, which prevents them from working as hard and as dedicatedly as the outsiders. And this is not simply about Maharashtra. So, if there is a bias in favour of North Indians it is fueled by the well-founded belief that they make a better and more dedicated work force. And that’s a commercial, and not regional, decision.

But Tyson would obviously not want to admit that for the simple reason that he cannot commit a political suicide by preaching to those who he purportedly represents because politics is about pointing fingers at the opponent. Soul-searching is not the name of the game.

Finally, my apologies to Mike Tyson and Britney Spears.

Section 377: Questionable exercise of Judicial Review

Delhi High Court’s ‘decriminalizing’ homosexuality has been an interesting event because the ‘relief’ that High Court granted does not really enable two consenting adults to do behind the closed doors anything that they could not do earlier.

No person can be prosecuted without evidence and to gather evidence to support a charge of unnatural sex between two consenting adults, the authorities would necessarily have to breach right to privacy in one way or the other, which is impermissible in law, as right to privacy is a fundamental right. Therefore, it is virtually impossible to invoke Section 377 against homosexuals. This explains why there has been no prosecution of consenting homosexuals under the said provision.

Possible or actual misuse of a legal provision or an apprehension of the provision’s violating a fundamental right are no grounds for the court to declare the impugned provision unconstitutional. It is upon those who assail a legal provision on constitutional grounds to show an instance of the actual violation of a fundamental right. The court is a place where legal provisions are enforced and in case of violation of any right, relief is granted. It is no place to hold an academic debate about the desirability or dangers of legal provisions. Since the petitioners did not have a single instance of the prosecution of a person for consensual homosexual act, the High Court could not have entertained the petition in the first place.

Furthermore, in this case the provision had stood since 1860 and in over 60 years, Parliament did not find it fit to interfere with it. Therefore, there has to be a very strong presumption in favour of its constitutional validity.

It was also argued that the term ‘sex’ used under Article 15 should be read to include ‘sexual orientation’ thus extending the protection of Article 15 to the homosexuals against Section 377. The term ‘sex’ under Article 15 refers to a status and not an act, and so does the expression ‘sexual orientation’. Section 377 does not punish one for one’s sexual orientation.

Therefore, the police cannot haul someone for ‘being’ homosexual, but only for specific acts of unnatural sex. Even if the person shows up in a police station and declares that he is ‘gay’, the state still cannot prosecute the person in absence of evidence to support at least one act of ‘unnatural sex’. The same goes even for a murderer. It is not enough for one to confess to having killed. If the police fail to ascertain who has been killed, even a confession before a magistrate would not get them a conviction. That’s because it is the act of killing, and not one’s status as a murderer, that makes one liable for punishment. This might appear to be a very fine distinction, but it is this distinction that disallows the state from prosecuting one for simply ‘being’ gay. The protection of Article 15, even if ‘sexual orientation’ is included within the meaning of ‘sex’, does not extend to Section 377 simply because it would be illogical and absurd to say that Article 15 prohibits the State from doing under Section 377 what it was never doing and could not have done anyway, which is to punish someone for his or her sexual orientation. This is an inherent limitation in Section 377 with respect to its enforceability against the homosexuals. The ‘reading down’ was not required, at least not as urgently.

The “persons who demonstrate a propensity or intent to engage in homosexual acts” are prohibited from serving in the armed forces of the United States. It is this kind of discrimination that could attract the protection of Article 15 because this is a discrimination based on ‘sexual orientation’, which is why if one proclaims to be a homosexual while serving in the US armed forces, he or she would be discharged without the authorities having to show that he or she actually engaged in homosexual act. And that is demonstrably not the case with Section 377.

The manner in which Section 377 has been selectively struck down is also questionable. Doctrine of severability provides that a part of the legal provision may be struck down for being ultra virus the Constitution if it is severable from the rest, and if not, the whole of the provision must go. It is only in exceptional cases that on account of the inseverability of the part, its enforcement is restricted on constitutional grounds.

Exercise of Judicial Review to restrict enforcement of a provision can only be done in situations wherein both striking down the impugned provision and enforcing it in totality result in ‘actual’ violation of a fundamental right. Such exercise of Judicial Review must be strictly and clearly in the interest of justice, as it strains the Separation of Powers inbuilt in our Constitution because ‘reading down’ a provision means virtually rewriting it, which lies in the exclusive domain of the legislature. Separation of Powers is part of the Basic Structure of the Constitution, which no arm of the state, including the Judiciary, can offend.

Therefore, such exercise of Judicial Review that treads the borderline of the Separation of Powers must be occasioned by urgent and compelling need. Section 377, having stood for nearly a century and a half without a single homosexual prosecuted under the provision in at least the last 60 years, certainly did not warrant the exercise of Judicial Review in its extraordinary mode.

Therefore, it appears that the High Court exercised the power of Judicial Review improperly in an inappropriate case, which makes the judgment legally infirm and constitutionally questionable, and, therefore, prone to judicial reversal on legal grounds, its progressive spirit notwithstanding.

Originally written for and published in LAWYERS UPDATE [August 2009 Issue; Vol. XV, Part 8]

Firaaq: The scarred human face of Gujarat pogrom

Hatred is an effective long-term political tool because emotions are not resolvable issues. It sets the ball rolling down the slope with the ball gathering momentum on its own without requiring any more impetus till the time it hits a dead end, which is almost always a long way down the dark alley. Hatred wedges in a virtually indissoluble divide on the basis of perceived wrong and imaginary subjugation. It is a self-fueling machine that needs nothing more than a little push every now and then. It gives rise to new overzealous leaders, who just need to have a fiery tongue and a combative stand to exist regardless of whether or not they know the first thing about combat of any kind whatsoever. And, of course, the real issues can be put on the backburner to be attended to at leisure.

But then, the ‘installation’ of a divide is a painful process. So, when hatred is used as a political tool it has another side to it – the heart rending human side. Loss and tragedy is fodder to hatred, which keeps the masses divided. Firaaq focuses on this side of the story and tries to demonstrate how the ripple effect of hate-mongering touches all shores across the spectrum of economic prosperity and social status.

The movie begins with a roaring truck with an unmistakable lotus painted on the front of the hood dumping a huge load of bodies to be buried in what appears to be a mass grave reminiscent of Nazi Germany. Among the dead there is a Hindu woman. The very sight of the body enrages the middle aged grave-digger, who lunges on with a spade to kill the dead woman a second time. His younger companion holds him back as the older fellow breaks down in tears. That’s just the start of the harrowing journey into the lives of those who suddenly found themselves in the midst of a mindless massacre with little help in sight. They felt helpless and suspicious and desperately looked for someone whose collar they could hold and ask as to why they were made to go through blazing hell for not fault of theirs. And all through this the state stood by the sidelines and watched, disinclined to intervene. It wasn’t powerless; it never is. The state is always powerful enough to contain at will a bunch – no matter how large – of unruly hooligans. But it chose not to.

Firaaq zooms into the lives of five different people living their lives separately bound together only by common place and circumstances. Their stories just brush against each other. One thing common is that all of them have to deal with their circumstances against a violent backdrop in their own different ways. They are all baffled by the human tragedy that suddenly barges into their lives and they are left to fend for themselves. And this is just after the fire subsided with the after-heat very much present and perceptible.

A Muslim couple returns back to their house from safety to find their humble abode burnt and ravaged. What lay there in tatters was the home they had built bit by bit for years. Who could have done this to them? Which of the neighbours? Nobody is above suspicion. Not even the wife’s closest friend, Jyoti, who comes to her with offer of work for her on her return. She must know who did this, the wife thinks and keep pestering her for answers while her husband is out looking for a gun to take revenge on one Mehul whose involvement the couple suspects because there was a dispute with him earlier. Of course, the suspicion is ill-founded and towards the end of the movie the quest for revenge would come to nothing with the couple realizing that they need to come to terms with their life as it exists.

A housewife (Deepti Naval) in a typical Gujarati family is feels forever guilty about not having sheltered some of those who came knocking fervently at their door begging to be protected from the bloodthirsty mob of killers. The rest of the family, however, goes about the business of living guiltlessly.

Then there is little Mohsin, a small orphaned child all of six or seven years of age who has run away from the ‘camp’ to look for his father. He learns from experience that when they ask your name, they want to know a little more than just the name. He also realizes that somehow Mohsin and Mohan were not just ‘two’ names, but were two ‘different’ names. And ‘Mohan’ was somehow ‘safer’ than ‘Mohsin’. That’s tragic and shameful for us as a nation.

There is an old musician, Jageer Khan (brilliantly essayed by Naseeruddin Shah) who lives with his servant (Raghuveer Yadav’s effortless marvel). The musician refuses to accept the communal divide and considers it a human problem. Towards the end he almost loses hope for a little while and feels that everything, including music, was powerless to subdue such hatred. But then, the next day he is back to his polished notes. Hope refuses to sink.

A Hindu-Muslim couple decides to leave for Delhi after their store is robbed during the riots. But the husband, Sameer Sheikh (Sanjay Suri), despite being scared is uncomfortable with the fact that he has to leave. He also realizes to his utter discomfort that going to Delhi was not the solution because no matter where he goes, Delhi or Delaware, he remains Sameer Sheikh and would be looked upon with suspicion on account of his religious identity. So, at the end he decides to stay where he belongs.

The movie ends on hope. Yes, there is hope. There is hope that the life can still continue. But that is not enough. We are still to glimpse the hope that burnt bridges could and would be rebuilt.

The more worrisome side of Gujarat pogrom has been the state complicity, which is undeniable. It was not a failure of law and order machinery, but a misuse of it for political mileage. Secularism is part of the basic structure of the Constitution and of our collective aspirations set out in the Preamble itself

A flagrant violation of a fundamental constitutional principle by a political entity that has sworn allegiance to the Constitution it later chooses to violate and subvert, cannot be taken lightly. And if, for any reason whatsoever, we as a nation fail to hold such an entity accountable, it is a collective failure of the people. And failures of such humungous proportions have unbearable consequences.

Originally written for and published in LAWYERS UPDATE (June Issue; Vol. XV, Part 6)

Sharad Yadav and Socrates: The obvious disconnect

Sharad Yadav is against women reservation bill and declared that he would consume poison if the bill was passed in its present form. Later, in order to wriggle out of the suicide statement, which could in part be politically suicidal, he referred to Socrates’ cup of hemlock in his defence and apparently likened himself to the great Greek philosopher.

Socrates agreed to consume poison simply because he believed that irrespective of his own beliefs and regardless of his disagreement with his accusers he was morally and legally obliged to drink poison in obedience of the law because having stayed in the territory despite having the option of leaving anytime he wished, he had implicitly agreed to obey the law of the land and also bear the consequences if he was ever found in violation of the law. So, when he was found guilty and sentenced to death, he had no option but to die as stipulated not only in accordance with the law but also in conformity with his own intellectual beliefs and convictions. This is what makes Socrates one of the very, very few strictly ‘intellectual’ martyrs.

Amusingly, Sharad Yadav says that if the Bill was passed in the present form he would consume poison, which means if it became law through constitutional means he would oppose it illegally by committing suicide. Socrates consumed poison in obedience to the law whereas Mr. Yadav threatens to do the same in violation of it.

One can resist the enactment of a law through legitimate means like peaceful demonstrations, dialogue and Parliamentary debate is permissible, but to employ means like damaging public property, disrupting normal everyday life and threatening to commit suicide are certainly impermissible and illegal. Once means to persuade and convince fail and the legislature enacts a law, the law so enacted has to be accepted as the will of the people. Socrates died for the principle that one might disagree with the law but must obey.

So, Sharad Yadav can disagree with and resist the Bill while it is in the process of being passed and may continue opposing it with all the means at his disposal after it becomes the law, but not in the name of Socrates because the great Greek would not have the law defied or the consequences of its violation evaded.

To be Socrates, Mr. Yadav, you need to consume poison in obedience and not in defiance of the law. So, correct your course or find a better ally among the dead Greeks.