Why the bad guy takes the girl…and how far

With another report hammering it, the truth is out to the massive disappointment of ‘good guys’. So, why do good guys despite having been told that they are ‘ideal’ in every respect fail to become ‘hot property’ with girls? What is it that attracts women to the darker persona? At the same time, it, too, is indisputable that though women like such bad boys for flings, they settle for the more dependable and caring kind. Does it sound paradoxical? Actually, it’s not. It’s the flip side of the same coin.

Bad boys are uncaring while girls are normally a pampered lot. So, when they find someone who has scant regard of their being ‘girls’, they feel like holding on to him. That urge to possess the flitting adds to their raging desire to be possessed by the one who doesn’t believe in being tied down. On one hand, the girl wants to appeal to such a guy so as to feel victorious and desired at the same time, while on the other hand her motherly instincts tend to take a corrective approach, whereby she wants the guy to mend his ways because of her. This again adds to her self-esteem and her sense of achievement. Such a guy is a trophy and the deity at the same time. And that’s a huge, irresistible pull.

However, the girl despite her desire to win a trophy has no inclination to possess or control it, unlike males. On the contrary, she wants to be possessed, controlled, protected and pampered. The child and mother in a girl never die but coexist within her always. Therefore, she wants to be childish as well as motherly with the object of her affection. This is precisely why she would not settle for a ‘bad’ or promiscuous guy because being childish or motherly makes her vulnerable and she would expose her vulnerable side only to such person whom she could trust. Exposing that part of her to an untrustworthy person is a risk she would never take.

So, a bad guy gets to see this side of the girl only when the girl is fully convinced about his irreversible reformation. This means that a ‘bad guy’ actually never gets the complete girl, but only the ‘girl part’ of the girl. The deepest and the most prized emotions of the girl remain uninvolved or firmly suppressed. However, to build such unimpeachable trust in girl is an extremely arduous task, especially for a ‘bad boy’ because emotional involvement of a girl breeds insecurity in her in corresponding measure, and she resists being convinced forcefully. And in most cases a time comes when she just can’t take it anymore and decides to walk away with the one she can place her trust in. The nature of trust is such that it’s hard to build it upwards from distrust, which is why the bad guy gets the girl only in superficial sense.

This is where the good guy steps in. He is someone in whom the girl can place her absolute faith. She, with this good guy, can be a mother and a child fearlessly and with unstinted abandon.

The complex emotional wrangle that goes on with the girl is almost incomprehensible for most of the guys for a simple reason that they are genetically hardwired to choose white or black or even gray, but not a volatile admixture. The subtle, emotional nuances are beyond our grasp. This may well be on account of the fact that since the Stone Age man has been predominantly playing the single role of protector and provider while women have multitasked and played several roles at the same time without fail. In any social structure she would play the pivotal role displaying many fine talents while the man would always be the personification of might and brute force and would play the guard and the guardian in varying degrees. Therefore, human male could never develop complex emotions or even the ability to detect, much less comprehend them.

Report referred to:
Bad guys really do get the most girls

Closing Aarushi

It’s time to close Aarushi. I have read enough and said enough. It is for the police to find out the truth and for the courts to test its veracity. So, let the indisputable truth be out first. It seems that in the blizzard of speculation we have not only lost the truth but also our own judgment. And I wrote my last post in order to demonstrate as to how far has this insanity gone.

Though it may sound a little insensitive, but the fact is that Aarushi’s case is no different from dozens of such cases that came before and hundreds that are to come after it. The kind of attention this case got cannot really be explained. Perhaps, it was shocking for the people that an educated father could kill his own daughter, or may be what intrigued the masses was the idea that the father killed for the reason claimed. Or may be in addition to the foregoing two factors there was nothing worthwhile going on, so media chose to splash it across the front pages. And when it caught the fancy of the people, they simply kept feeding it. After all, media is dutybound to tell what people want to know. It has no liberty to impose its own judgment of the desirability of a news item on the people. It’s free democracy in both the senses.

This is, therefore, going to be my last post about Aarushi unless something earthshaking happens compelling me to comment upon, or some legal issue attached to the case warrants discussion. I think I have already written quite a lot about it.

However, this does not mean I am somehow avoiding Aarushi, and we may return to it anytime. But I am quite willing to close it now, at least for some time.

Aarushi: Comprehensive character assassination

I have consistently maintained that the whole truth in Aarushi’s case has been lost forever, and whatever remains or will be discovered will be nothing more than scattered debris of the truth. A lot was said about Aarushi that could be ‘character assassination’. I do not include the truth within the meaning of ‘character assassination’, which is to say whatever that is true about Aarushi-Hemraj connection is necessarily outside the meaning of the expression. However, it seems that people have gone to extraordinary lengths to ensure that character assassination is complete, undoubted and unpardonable, regardless of the truth. Some part of what all has been said will be proved wrong.

I could not help the conclusion after reading this rather elaborate piece titled Aarushi-Hemraj double murder: Likely killers and the motivational theory. This write-up is simply shocking. It is ‘comprehensive character assassination’. The writer goes to the extent of covering everything that was left out. He goes ahead and makes a connection between the father and the daughter and also attaches the mother in the most repulsive way, and, of course, the servant.

So long as such fecund imaginations are at work we would never be short of theories, howsoever outlandish. Every point this fellow makes can be countered well enough. But that’s beside the point. The point lies in noticing as to how dark the darker recesses of human mind are. Amusing.

A NARCO STORY: Possibility of gross injustice

Acquittal of the guilty is certainly unjust, but conviction of an innocent is gross miscarriage of justice. A doubtful science like narco-analysis, with its status as a ‘science’, could indeed lead to such gross injustice. Here is a hypothetical case to demonstrate the point. The facts of the case are indeed fictional, but by no means fanciful. This could happen anytime, anywhere with disastrous results.

A and B, have some ancestral property dispute, and the relationship between the two is souring day after day. They don’t visit each other and do not allow their families to have any contact with each other. A, the elder of the two, is in possession of the property but does not want share an inch of it with his younger brother B, who is in dire need of money. Now, B is in dire need of money, not because he is genuinely poor or cannot earn enough but because he chooses to squander all that he earns in drinking and gambling, which is also why A does not want to hand over B’s share in the property. A is not dishonest but knows it well that B would sell the property and money begotten would buy expensive liquor and would be lost over card games. B wishes A was dead, he hates him for making him feel so small and so utterly miserable. He would love to kill him and on many occasions he would lie awake on those sleepless nights and run detail plans to kill his brother in his mind. But at the end of it all, he would find that he somehow does not wish his brother dead. He took him to swimming in the lake all his childhood and was the one who always stood by him when he had to face his father’s ire. And he would drop the plan. Many times when he would have no money after a bad game of cards, he would tell his teenager sons at dinner time as to how much he hated his brother and how he had dishonestly kept his share of the property, and how bad his brother was and so on. He would often eye the kitchen knife with a long, broad and strong blade, and imagined how it would pierce through his brother bringing an end to his miseries.

    One day A was found dead in his bed. Someone had climbed through the balcony and slain him with a sharp edged weapon, which could be a knife. The investigation began. The motive was not burglary because nothing was stolen so it could only be intense enmity or hatred that could be the driving force. So, enmity or hatred or both could have driven someone to kill. Who could have such a motive in case of A, who was not of the quarrelling kind? Property disputes, normally, are excellent motives. B was rounded up for questioning. His hatred for his brother was unmistakable. He hated him enough to kill. The investigation officer, a veteran investigator, could sense the latent pleasure in B’s demeanour, as though he was relieved and satisfied. The knife was soon found in a drain near the house. It was B’s kitchen knife.

Circumstantial evidence was building against B. On being questioned he told that he had a quarrel with his wife and went away. He drank with a friend of his and on his way back, he fell in a drain. He could not climb up and came back home in the morning, all wet and dirty. This drain could well be the drain in which the knife was found. The investigator was convinced. He intensified the questioning. Like a seasoned investigator, he built a non-adversarial, semi-sympathetic, semi-friendly bond with B. He ensured him that he understood B’s situation completely and understood his hatred for A. So, B could open his heart to him. B did admit how much he hated A and how he wanted to kill A with the same knife. But he was way short of confessing, which the investigator wanted.

 

“So, you went to his house that night?”

“No, actually I did not. I wanted to kill him but I did not kill him.”

“Look, there is no point lying. We have evidence that you took the kitchen knife with you, went to A’s house, climbed through the balcony and while A was asleep you put a pillow on his face and drove the knife right through his heart.”

“No, I did not do that.”

 

B did not confess and since A was a person of repute, the pressure was building. After another round of intense questioning, he was sent for a narco-analysis.

    During narco-analysis, B’s talked of how much he hated A, how much he made him to suffer and how badly he at times wanted to kill him. Then he talked about the days his brother took him to swimming and protected him. He also recollected how he wished to drive that knife through his heart and then the distinction between the real and the imagined blurred. His brain, crippled by the drug, could not filter the imagined out of the real, neither could it distinguish between the two. It simply supplied the images, both real and imagined. Thus, B ended up mixing his feelings of intense hatred for his brother, the plans he had made to kill him, and he could also picture the murder scene in great detail, as it had word-painted for him by the investigator during the investigation over and over again. And then he pictured himself driving the knife into his brother and seeing him lie in a pool of blood, as he had so often imagined and as he was made to imagine during the investigation. The confession was, thus, obtained. The investigator’s guess was proved correct. The knife has already been found, the investigator’s theory of why and how B killed A proved correct. The judge hearing the case was shown the naro-analysis tapes and the circumstantial evidence, together with the recovery of the murder weapon (B’s kitchen knife) left nothing to doubt. B had the motive to kill and the evidence was enough. The conviction followed. The veteran investigator was happy to have cracked another big case. What he could never know was that B never hated A enough to kill him. He just wished that he hated him enough. But he did manage to communicate his hatred to his younger son, who harboured it and nurtured it till the night in question arrived.

    On the fateful night when, after quarrelling with his wife B went away, his younger son (17) found it impossible to handle the fights over money he had been witnessing ever since he was born. He knew, as he had always been told, that his uncle (A) was the root of his suffering. Simmering with white rage and unable to control it he took the kitchen knife around 2 a.m. and proceeded to his uncle’s house. He came back home at around 4 in the morning. Every one was asleep, he stole in and took a quick shower, washed the blood off him and off his clothes. He was never interrogated, as he was not a suspect. And he could not gather the courage to own up.

    In absence of naro-analysis, there was a chance that B could get a benefit of doubt and it is also possible that the investigator might have tried to look into other angles and tried to make a broader list of suspects, but since narco-analysis presented to him a straight opportunity to verify his theory, he went ahead with it. And things turned out differently. In view of the circumstantial evidence, which, of course was strong, backed by naro-analysis test even judge could not bring himself to give the accused a benefit of doubt. It is true that judges are trained not be swayed by inadmissible evidences or the hype surrounding a case but it cannot be denied that at some point of time they, too, have to form an opinion. In this case even if the real culprit could not have been caught, an innocent could still be saved from conviction. In this hypothetical case, everyone played his part honestly and there was no foul play. But still the room was grave injustice remained. Think of the cases where the high and mighty are involved, narco-analysis, in such cases, could well be an unholy tool.

This is the third and final part of the three-part Cover Story I did for LAWYERS UPDATE (July 2007 issue).

Is Narco-Analysis A Reliable Forensic Science?

Using scientific evidence in a criminal trial is a serious affair because science by definition is exact, uniform and verifiable, and scientific inferences are logically unimpeachable. Therefore, scientific evidence cannot be easily brushed aside. The only way available to disregard a scientific finding or the testimony of an expert witness is to show by cogent reason that either the scientific finding in question has no relevance with respect to the issues in question, or the conclusions arrived at by the expert witness are not based on scientific reasoning but on speculation, or that the scientific process is not reliable for want of consistency. However, so far as narco-analysis is concerned, it falls short of even being a ‘science’ at all, many experts have opined. Dr. P. Chandra Sekharan, a highly regarded expert and former Director of the Forensic Sciences Department of Tamil Nadu, has gone to the extent of calling it “an unscientific, third-degree method of investigation” (The Hindu, May 2, 2007; Pg. 11), and appears to be right with even the Supreme Court of New Jersey agreeing with him in this regard. The New Jersey Supreme Court banned the use of Sodium amytal narcoanalysis in Pitts v. State for lack of scientific reliability.

Daubert Standard

Ever since the first reported use of criminal narco-analysis in 1922, the process has been under the scanner with absolutely unflattering results. It is no longer used for therapeutic purposes anywhere in the world though in the 1930s it was used for psychotherapy. Narco-analysis was later extensively experimented with by the US armed forces and the intelligence agencies, especially around the time of the World Wars. However, so far as getting to the truth is concerned, even they did not find narco-analysis a great success. The Central Intelligence Agency (CIA) has conceded that all that these drugs could do is lower the initial resistance but what is revealed during the interview could well be “psychotic manifestations… hallucinations, illusions, delusions or disorientation”. Furthermore, the CIA conceded at the 1977 U.S. Senate hearings that “no such magic brew as the popular notion of truth serum exists”. The studies conducted in the area have also concluded that the person might start talking more uninhibitedly, but that he would speak the truth is certainly not certain. Narco-analysis, thus, takes away the stops off one’s mind and whatever is on the surface of the mind gushes out. This, obviously, does not mean that all of it is true because human beings do not always think of the true, concrete and actual facts but also about dreams, wishes and fantasies. There can be a situation when after intense interrogation, all that the person has on his mind is the crime and might also start associating himself closely with the thoughts and feeling of the interrogator about the crime. In such a situation if the person is subjected to narco-analysis, his statements might start reflecting the interrogators thoughts inextricably mingled with his own thoughts, the true facts and the images that cropped up in his mind during the investigation. This could mislead the investigation and may also lead to miscarriage of justice in part or in whole. The courts across the world are aware of this position. Therefore, in order to judge the legal admissibility of scientific evidence, scientific study and, in particular, expert testimony the Supreme Court of the United States evolved what has now come to be known as Daubert Standard in 1993.

Daubert Standard and Narco-analysis

Daubert Standard is a legal precedent set in 1993 by the Supreme Court of the United States in Daubert v. Merrle Dow Pharmaceuticals, 509 U.S. 579 (1993). Daubert motion is brought in before or during trial for the exclusion of the testimony of an expert witness, who, in the opinion of those raising the objection, is either not an expert witness or has used questionable means to obtain the information or the inference he draws are based largely on speculation. According to the US Supreme Court, for any scientific evidence to be of use in legal proceedings there are four essentials to be satisfied. These are:

 

  1. The theory or technique must be falsifiable, refutable, and testable.
  2. It should have been subjected to peer review and publication.
  3. Its potential error rate should be known and also the existence and maintenance of standards concerning its operation.
  4. The theory and technique should also be generally accepted by a relevant scientific community.

 

Now, as we already know that narco-analysis is not considered to be a reliable science when it comes to getting the truth out of a suspect. At best it can make the person talk, nothing more. However, the authorities and some of the experts involved vouch for its reliability, but that cannot supply the requirement of peer review and publication. The specific methods being used at Forensic Science Laboratory, Bangalore have neither been peer review, nor has it data been published. So far as narco-analysis generally is concerned, those who have been using it for decades now (CIA etc.) have categorically stated that the method is far from exact and quite unreliable for the purpose of getting the truth from a person. Therefore, there is no question of its being ‘generally accepted by a relevant scientific community’. On the contrary many experts, like Dr. P. Chandra Sekharan, do not even consider narco-analysis a science.

Therefore, the position is that narco-analysis is gaining currency and judicial acceptance despite that it is a doubtful ‘science’ and is considered highly unreliable. Besides, its constitutionality is far from settled and from the look of the things it seems that it may not sail through a rigorous constitutional scrutiny. Moreover, narco-analysis is weak vis-à-vis human rights and also increases the possibility of a gross miscarriage of justice. In such a situation we need to do a serious rethink about whether or not we want it to be a part of our crime investigation technique, which it is fast becoming. Rushing things in this regard could be disastrous.

This is the second part of the three-part Cover Story I did for LAWYERS UPDATE (July 2007 issue).

NARCO-ANALYSIS: Constitutionally Questionable

So, finally the Nithari Killings case seems to have been solved and the guilty brought to book – “thanks to the truth serum,” many of us are likely to add. Truth Serum is used to extract the truth but what is thus ‘extracted’ may not, necessarily, be the truth. But before we proceed to the efficacy and reliability of a method, the question of legality must be laid to rest because no amount of effectiveness of a process can supply the legal prerequisites. The first question, therefore, is not if narco-analysis can unearth the truth but whether it is legally permissible or not. And truth serum is clearly not constitutionally ‘clean’, so to speak, because it works by crippling the volition of the accused and loosening his wits up. This, in other words, means taking away one’s control over one’s mind, and making him talk more uninhibitedly. This is a violation of mind akin to torture and extraction of confession by force. In fact, far worse than torture because during the torture the person confessing still has control over his brain and he is tortured precisely for that reason because the information cannot be begotten unless he ‘voluntarily’ gives it away. The person has to let go. However, the judicial opinion has a different take on it. In Dinesh Dalmia v. State (2006) the Madras High Court ruled that narco-analysis testimony was not ‘testimony by compulsion’ because the accused “may be taken to the laboratory for such tests against his will, but the revelation during such tests is quite voluntary.” Now, the most crucial terms to be analyzed are here are ‘compulsion’ and ‘voluntary’. Here they are treated as mutually exclusive in the sense that if the testimony is by ‘compulsion’ it cannot be ‘voluntary’ while it is very much possible to ‘compel’ one to testify ‘voluntarily’. And that would certainly be a testimony by compulsion despite the element of volition inherent in it. One can be beaten, tortured or threatened into testifying or confessing in the court. Would that testimony or confession be voluntary? If this is not voluntary, how could a testimony under the influence of drugs, when even one’s volition is suspended, be ‘voluntary’ by any stretch of imagination? The decision of the High Court clearly states that the person in question is taken to the laboratory “against his will”, and this is where the compulsion starts. In the laboratory he is injected with drugs that make him slip into a trance like condition with his inhibitions down and then the questions are asked, and he answers because he no longer has any control over his brain. And he starts talking about everything that is on his mind – right and wrong, true and imaginary. Taking away one’s control over one’s mind is the violation of the worst kind, the most unthinkable breach. Even when third degree methods of torture are used, one still has control over one’s mind and may still refuse to give away, after all that torture, if one doesn’t wish to. But in case of narco-analysis even that little semblance of ‘voluntary disclosure’ is taken away, making third degree tortures a shade better on human rights scale than narco-analysis.

    Now, the supporters of narco-analysis might argue that the so-called ‘consent form’ signed by the accused supplies the requirements of ‘voluntary disclosure’. That’s a fallacy, as in case of a court-mandated narco-analysis, the ‘consent form’ has absolutely no relevance because the compliance of a judicial order passed by a competent court is not subject to anybody’s ‘consent’. The term ‘order’ itself implies authority to compel obedience. So, if a competent court orders narco-analysis, consent or no consent, the order has to be complied with, unless it is challenged and stayed or reversed by a superior court. The accused has no choice against a valid court order, and has to testify. So, there is ‘compulsion’ and there is ‘testimony’ and it surely is ‘testimony by compulsion’. However, compulsion per se is not illegal. Therefore, the only question is whether or not the compulsion in this case is legally sound.

    Bombay High Court held in the Adbul Karim Telgi case that “certain physical tests involving minimal bodily harm” like narco-analysis and brain mapping did not violate Article 20 (3) and did not compromise the constitutional protection against self-incrimination. The saving grace is that the confession or the statement made during narco-analysis is not admissible as evidence in a court of law, and that is the reason why the protection against self-incrimination under Article 20 (3) is not breached. The disclosure leading to the recovery of incriminating material, like a murder weapon or forged documents, are admissible. In the above-mentioned case Bombay High Court seems to have held that narco-analysis is permissible because it involves “minimal bodily harm”, which implies that all such methods of extracting information that inflict minimal bodily harm are legally permissible. The expression ‘minimal body harm’ in this context can be taken to mean ‘causing no grievous hurt or long term disability’. Minor physical discomfort or strain is by implication disregarded. Simply keeping one awake for days on end and pouring water every time one tries to sleep would certainly do ‘minimum bodily harm’ and of course would cause no grievous hurt of long term disability of any kind, but isn’t it torture? Giving a narrow reading to Article 20 (3) and connecting it to bodily harm might not offend the letter of Article 20 (3) but it definitely does violence with the spirit of it because protection against torture is one of the foremost objectives of the constitutional protection against self-incrimination. The judgment also seems to run counter to the accepted principle that the constitutional provisions pertaining to Fundamental Rights in Part III of the Constitution have to be construed liberally so as to afford maximum protection.

    It is an accepted legal position that the protection under Article 20 (3) does not extend to compulsory production of materials or compulsion to give specimen signatures, finger impressions or blood samples. Narco-analysis, however, is still different and clearly distinguishable from giving specimen signatures or blood sample or even taking a polygraph test because except in case of a narco-analysis, the accused retains his control over what he is doing or saying and at no point of time can he be compelled to disclose any such information that he wants to keep to himself. Giving blood samples and specimen signature in such case is much like allowing the investigation officer to search the residence of the accused and go through his belongings in search of evidence. That’s very much permissible. The legal and constitutional infirmity of narco-analysis lies in the fact that it takes away one’s control on one’s mind, which brings it in the category of mental torture. And tortures of all kind fall foul with Article 21, under which right against torture is implied. Therefore, narco-analysis not only stands weak against the challenge of Article 20 (3) but also finds itself in a tight spot with respect to Article 21.

    Another well settled constitutional principle is that India has to conduct itself in accordance with the international treaties and conventions it is party to. Of course, principles of International Law do not come into effect automatically, they have to be backed by a legislative enactment to be effective, and if they tend to be against the law of the land, the municipal law gets precedence over them. However, in case of torture, not only several statutes, including the Code for Criminal Procedure, provide for safeguards against it but also the Constitution, through Article 20 (3), seeks to provide effective protection in this respect. On the other hand, there is no express statutory support for measures like compulsory narco-analysis. While narco-analysis is quite clearly low on the scales of human right, the government cannot even plead the existence of domestic law specifically authorizing such means against a plethora of international conventions that frown at the use questionable means of extracting information during a criminal investigation. Therefore, by giving too narrow a reading to legal and constitutional protections in this regard we might also be disregarding our obligations under the International Law, which, under our Constitution, must be discharged unless a specific domestic legislation is irreconcilably opposed to it. Besides, it is not just the legality and constitutionality of narco-analysis that is questionable but also its efficacy and its status as a ‘science’.

However, the final judicial pronouncement on the constitutional status of narco-analysis is yet to come, but it seems in the offing, as in 2006 the Supreme Court of India stayed the order of a metropolitan judge to conduct narcoanalysis on K. Venkateswara Rao in the Krushi Cooperative Urban Bank case. The issue required to be settled by a court decision because Mr. Rao refused to sign the consent form and the Forensic Science Laboratory at Gandhinagar declined to conduct a narco-analysis test with a duly filled and signed consent form. The Supreme Court verdict is awaited.

This is the reproduction of a part of the three-part Cover Story I did for LAWYERS UPDATE (July 2007 issue). The byline has been taken off.

Aarushi: Trial by media?

‘Trial by media’ is another expression that is as overused as foot wipers at public toilets. Media cannot really escape the blame for blowing issues out of proportion and when it’s about high profile crimes, the pen-wielding sleuths work overtime to come up with strange – and sometimes outrageous – admixtures of facts and fiction. However, with all its shortcomings free media is precious and indispensible for responsible governance and the empathetic governed. In Aarushi’s case, the media did not have an option but to disclose what it did because it was official police version no matter how damaging to the reputation of the deceased. Media could not have helped disclosing it without compromising its duty as the principle disseminator of information.

News inspires views and journalists have their own way of looking at what they perceive as truth. It does, at times, cloud their judgment of a news story. Therefore, while one journalist might consider a particular piece of information relevant to the case, the other might discard it as not only irrelevant but also doubtful simply because it does not fit his conception of the chain of events leading to the crime. And though mistakes and errors in judging the newsworthiness of a story are thus possible, these are quite pardonable so long as the scribes work in good faith.

So, media in case of Aarushi cannot really be accused of inappropriately handling the reportage by allowing the not-so-clean portrayal of Aarushi’s character. Since the little girl was not old enough to have developed a ‘character’ and was quite vulnerable to unhealthy influences, it is not proper to point fingers at her. Agreed. But then media did not really indulge in finger-pointing, it simply reported the facts regarding the official claims. And we are still not sure whether or not the police story deserves credence. Truth howsoever unholy and unsavoury has to be told irrespective of the damage it does to anyone unless, of course, it’s prohibited by law, or the possible damage far outweighs all the good that the truth could do. But this one is not such a case for sure.