Strong anti-rape law for India as President Pranab clears the Bill #Vaw #Womenrights


 NEW DELHI, APRIL 3, 2013 | PTI

An anti-rape protester

An anti-rape protester
President Pranab Mukherjee has given his assent to the anti-rape bill which provides for life term and even death sentence for rape convicts besides stringent punishment for offences like acid attacks, stalking and voyeurism.Mukherjee accorded his assent to the Criminal Law (Amendment) Bill-2013 on Tuesday, brought against the backdrop of the country-wide outrage over Delhi gangrape , and it will now be called the Criminal Law (Amendment) Act, 2013, an official release said on Wednesday.The law, passed by Lok Sabha (lower House of Indian Parliament) on March 19 and by Rajya Sabha (upper House of Indian Parliament) on March 21, has replaced an Ordinance promulgated on February 3.It amends various sections of the Indian Penal Code, the Code of Criminal Procedure, the Indian Evidence Act and the Protection of Children from Sexual Offences Act.

With an aim of providing a strong deterrent against crimes like rapes, the new law states that an offender can be sentenced to rigorous imprisonment for a term which shall not be less than 20 years, but which may extend to life, meaning imprisonment for the remainder of the convict’s natural life and with a fine.

It has provisions for handing out death sentence to offenders who may have been convicted earlier for such crimes.

The law, for the first time, defines stalking and voyeurism as non-bailable offences if repeated for a second time. Perpetrators of acid attack will attract a 10-year jail.

It also defines acid attack as a crime besides granting a victim the right to self-defence. It also has provisions for imposing a minimum 10-year jail term for perpetrators of such acts.

The law has fixed age for consensual sex at 18 years.

New sections to prevent stalking and voyeurism were introduced following a strong demand from women’s organisations.

The amendments seek to define and prescribe punishment for the offences of stalking, voyeurism and sexual harassment.

The law also seeks to widen the definition of rape, broaden the ambit of aggravated rape and enhance the punishment for such crimes.

It also provides that all hospitals shall immediately provide first aid and/or medical treatment free of cost to the victims of acid attack or rape, and failure to do so will attract punishment.

It has provisions for a minimum imprisonment of seven years which may extend to imprisonment for natural life, and a fine for rape convict if he is found to be a police officer, a public servant, armed forces personnel or management or hospital staff.

The law also seeks to amend the Indian Evidence Act to allow a rape victim, if she is temporarily or permanently mentally or physically disabled, to record her statement before a judicial magistrate with the assistance of an interpreter or a special educator. It also has provisions to video-graph the proceedings.

 

PRESS RELEASE- #Justiceverma recommendations in context of assaults against women with disabilities #delhigangrape


National Platform for the Rights of the Disabled

4, Ashoka Road, New Delhi 110 001

 

 

January 24, 2013

 

 

Press Statement

 

The National Platform for the Rights of the Disabled (NPRD) welcomes the report and recommendations of the Justice Verma Committee concerning sexual violence against women.

The NPRD puts on record its appreciation of the seriousness with which the Committee has considered the specific issues concerning women with disabilities and the sexual assaults they face. Representatives of the National Platform for the Rights of the Disabled (NPRD) met the Committee on three occasions, and made its submissions.

The Committee has, amongst others, made the following recommendations, in the context of assaults against women with disabilities:

Duty of the State: The Committee has affirmed the duty of the State as the guarantor of the Fundamental Rights of disabled women and has stated that the involvement of private actors in providing services to the disabled, does not absolve the State of its Constitutional duty towards them.

The Committee has also invoked the idea of parens patriae (the State has the same rights over its citizens that the parent has over his ward) to describe the role of the State.

However, experience shows that protection by the State is like a double-edged sword. When the State takes over the role of the parent, it often overrides the opinion of the ward; the State then decides what is good for the ward and what is not. This could at times go against the interests of the disabled. This issue also needs to be addressed.

 

Making the Legal System Accessible: In its submissions to the Committee, the NPRD had highlighted the difficulties encountered by disabled women at each stage of the criminal-legal process, right from filing an FIR, to testifying in court during the trial. The Committee has responded to the submissions by recommending the following:

·        When a physically or mentally disabled woman lodges a complaint of rape (Section 376 Indian Penal Code) or outraging of modesty (Section 354 IPC), such complaint shall be recorded by a woman police officer at the residence of such woman, or wherever she is comfortable. The complaint shall be recorded in the presence of a special educator or interpreter, depending on the need of the complainant. The entire process of recording of the complaint should also be videographed. (Section 154 Code of Criminal Procedure)

·        A physically or mentally disabled woman cannot be asked to go to the police station. Her complaint must be recorded at her residence or wherever she is comfortable. (Section 160 CrPC)

·        During the process of Test Identification Parade, if the person identifying the arrestee is physically or mentally disabled, then the identification process must be videographed. (Section 54A CrPC)

·        While recording the statement of a physically or mentally disabled woman in court, the Magistrate must take the assistance of a special educator or interpreter, depending on the needs of the complainant. Additionally, the recording of testimony of the woman should be videographed. (Section 164(5)(a) CrPC)

·        Additionally, the statement made in the above manner shall be treated as a statement for the purpose of cross examination during the trial and the physically or mentally disabled woman would not have to re-state the same. (Section 164(5)(b) CrPC)

·        Section 119 of the Indian Evidence Act, provides for the recording of testimony of ‘dumb witnesses’. The Committee has recommended that this derogatory phrase be replaced with ‘persons who are unable to communicate verbally’.

One of the major reasons why most cases involving rape of disabled women fail to convict the wrongdoer is because the testimony of the victim is not given due importance by the police or the court. The above recommendations, if incorporated in the law would go a long way in addressing this problem.

However, the definition of ‘special educator’ and ‘interpreter’ require further clarity when these recommendations are incorporated into the law. In our deliberations with the Committee we had stated that a special educator may not know sign language and an interpreter may know only a few signs, and therefore may not be always equipped to provide the required assistance in bridging the communication barrier between the victim and the legal system.

Medico-Legal Examination: Medical examination of the victim is of utmost relevance in cases of rape, both from the point of view of providing medical aid and from the point of gathering evidence for the trial. The Committee has recommended the setting up of Sexual Assault Crisis Centres at government and private hospitals to carry out this task. The Committee has recommended that the Counsellors present in these Centres should be professionally qualified to address the needs of disabled victims of sexual assault. In addition, the report of the counsellor regarding disability of the victim should be part of the medico-legal evidence that is submitted to the court.

Safety of Women and Abuse within Institutions: The Committee has affirmed that every citizen has a right to protection against violence and it is the duty of the State to provide safe spaces to all women, including disabled women. The Committee has recommended that such safe spaces should be accessible to the disabled in terms of architectural design, management and provision of services.  To address abuse of disabled children within institutions, the Committee has suggested that all such institutions and homes must be registered with the concerned High Court with the court acting as the guardian of such children.

The Committee has recommended that the concerned High Court should act as an oversight mechanism to all the institutions in the state and there should be weekly reports submitted to the High Court. The suggestion to professionalize the recruitment of care takers and superintendents, in terms of having mandatory qualifications etc. is a welcome suggestion and would improve the conditions of these institutions and the way they are currently managed.

Power Asymmetry and Socialization in Schools: The Committee has observed that it must be the task of educational institutions to recognise discriminatory attitudes among children on the basis of gender, disability, caste and so on and rectify the same.

Sex Education: The Committee has recognized that sex education must also be provided to disabled children and young people by professionally trained teachers and care givers, to ensure their safety and holistic development.

Aggravated Sexual Assault: The Criminal Law Amendment Bill 2012, which is at present before the Parliament provides that sexual assault against physically or mentally disabled women, is classified as an ‘aggravated sexual assault’ and has a minimum punishment of ten years imprisonment. While the Committee has endorsed most of the provisions in the Bill, it is unfortunate that this clause is absent from the Committee’s recommendations.

In the light of these recommendations made by the Committee, it is of utmost importance that the government act immediately. The NPRD demands that the recommendations made by the committee with regard to changes in laws should be passed in the Budget session of parliament. It also demands that necessary budgetary allocations for requisite infrastructure and providing personnel and their training should be made for implementing the other recommendations made by the Committee.

(Muralidharan)

Assistant Convener

National Platform for the Rights of the Disabled (NPRD)

9868768543

 

 

Standing committee on home affairs invites suggestions on criminal alw (amendment) bill 2012


PRESS RELEASE

 

STANDING COMMITTEE ON HOME AFFAIRS INVITES SUGGESTIONS ON THE CRIMINAL LAW (AMENDMENT) BILL, 2012

 

The Criminal Law (Amendment) Bill, 2012  as  introduced in   the  Lok  Sabha   on  4 December 2012  and  pending  therein,  has  been  referred  to  Department-related  Parliamentary  Standing Committee on Home Affairs, headed by Shri M. Venkaiah Naidu, M.P. Rajya Sabha for examination and report. The Bill seeks to amend the Indian Penal Code, 1860, the Code of Criminal Procedure, 1973 and the Indian Evidence Act, 1872 to review laws related to rape/sexual offences.

2.         The Committee has decided to invite suggestions in the form of written memoranda from the public/associations/women organizations/civil societies, etc, on the provisions of the Bill.

3.         Those desirous of submitting written memoranda to the Committee, may send the same   to Shri D. K. Mishra, Joint Director, Rajya Sabha Secretariat, Room No. 142, First Floor, Parliament House Annexe, New Delhi-110001 {Tele: 23035410 (O) and 23012007 (fax)} latest by 28thJanuary, 2013.

4.         The memorandum which might be submitted to the Committee, would form part of its records and treated as confidential and, therefore, should not be printed, circulated or publicized by anyone, as such an act would constitute a breach of privilege of the Committee.

5.         Individuals/stakeholders may obtain, on written request, a copy of the Bill, from Shri Bhupendra Bhaskar, Assistant Director, Rajya Sabha Secretariat, Cabin ‘A’, Basement, Parliament House Annexe, New Delhi-110001 (Telephone No. 011-23034034). The electronic text of the Bill can also be down loaded from the Rajya Sabha Website www.rajyasabha.nic.in.® Bills with C

 

#India- Chastity, Virginity, Marriageability, and Rape Sentencing #Vaw #Justice #mustread


The horrific gang rape incident in Delhi has led to demands for amending the law to provide for more stringent punishment for rape, including introducing the death penalty. Over the last few days, there have been various debates about the advisability of making such changes to the law. An issue that has not been highlighted in these debates is the existing state of rape sentencing. Any attempt at law reform needs to include an examination of this issue. In this piece, I provide a brief account of a few problems plaguing the current rape sentencing regime in India. This is based on my doctoral study at Yale Law School, in which I examined all rape cases decided by all High Courts and the Supreme Court over the last twenty five years.
Section 376 of the Indian Penal Code (I.P.C.) prescribes the punishment for rape. For non-aggravated forms of rape, the minimum punishment is seven years imprisonment, and the maximum is life imprisonment. The minimum punishment for aggravated rape (gang rape, rape of a girl under the age of twelve, custodial rape) is ten years imprisonment, and the maximum is life imprisonment as well. In both these circumstances, courts have the discretion to sentence below the prescribed minimum term of imprisonment, if they provide “adequate and special reasons” for so doing. The crucial question is: how do courts determine the appropriate sentence to be imposed on an offender? A basic understanding of the trial process is essential to understand the procedure involved. The Criminal Procedure Code (Cr.P.C.) divides the trial into two distinct phases – the guilt determination phase and the sentencing phase. In the guilt determination phase, the court either convicts or acquits the offender on the basis of evidence presented in this regard. If the offender is convicted, then the sentencing phase begins. In this phase of the trial, the court considers evidence and arguments on factors relevant to the determination of sentence. Ruling on the factors that a court should consider in deciding on sentence, the Supreme Court has held that the nature of the offence; the presence of aggravating and mitigating circumstances; the prior criminal record of the offender; his age, professional, social, and educational background, amongst others are relevant. Another important consideration is the theory of punishment that should be followed – deterrence, rehabilitation, retribution, etc. Since the I.P.C. does not provide guidance to courts on any of these issues, except for prescribing maximum – and in some cases, as in rape – minimum punishments, judges have the absolute discretion to determine the sentence for each individual offender. Unlike some other countries, such as the United States and England, India does not have sentencing guidelines, which provide rules and principles for judges to follow while sentencing. These guidelines generally list out factors that the court should (and should not) consider while sentencing. The absence of such guidelines in India is one of the reasons for the rampant disparity that exists in sentencing across crimes, including rape. In fact, the Supreme Court has itself repeatedly acknowledged the existence of disparity in its death penalty practice. It has observed that sentencing has become “judge-centric,” instead of being based on principles. The same critique applies equally to rape sentencing as well. However, the causes for disparity in rape sentencing, as compared to capital sentencing or sentencing in other crimes, are entirely different.
What makes rape sentencing different from sentencing for other crimes? Unlike other offences, the crime of rape carries its own baggage. Over the years, stereotypical and patriarchal notions have developed with regard to women’s sexual behaviour. Most of these notions are based on the assumption that the chastity and virginity of a woman are her most important “assets.” Popular notions consider rape as a fate worse than death since it robs women of these “virtues” and casts a stigma over victims for the rest of their lives. In these imaginations, rape is not a crime against a woman’s sexual autonomy or bodily integrity, but an irreparable loss to her chastity, “modesty,” and social standing. A woman who has already “lost” her chastity and modesty by having sexual relations before or outside of marriage, is not considered to have suffered too much harm; and the perpetrator is therefore not required to be punished too severely. In order to ensure that such stereotypical notions relating to the sexual behaviour and sexual mores of women are not considered in rape trials, the Indian Evidence Act was amended in 2003, prohibiting the defence from impeaching a rape victim’s testimony on the basis of her past sexual history. Unfortunately, the amendment appears to have impacted only the guilt determination phase of the trial, and not the sentencing phase. The site of stereotyping has merely shifted from the guilt determination phase to the sentencing phase of the trial, and stereotypes have an adverse impact on rape sentencing. In cases where the woman’s behaviour does not adhere to stereotypical constructs, the men who raped them end up getting lower sentences.
But, if the law prohibits past sexual history from being considered, how does it continue to impact rape sentencing? The answer to this is the nature of evidence required to prove rape, and the manner in which such evidence finds its way into the trial. The crucial fact that the prosecution has to prove in rape cases is the lack of the woman’s consent to sexual intercourse. Unlike laws of various other countries, Indian law does not require the prosecution to prove that the offender knew that the woman had not consented, or intended to rape the woman. The woman’s testimony that she had not consented to intercourse is sufficient. In fact, the Supreme Court has consistently held that conviction can be based solely on the testimony of the woman, and there is no need for any other corroborating evidence. However, the court has to be satisfied that the woman’s testimony is reliable, and she is in fact stating the truth. It is in the determination of the reliability of the victim’s testimony that stereotypes enter rape adjudication.
An important piece of evidence in rape cases is the report of the medical examination of the rape victim. Medical and forensic evidence enables the prosecution to show that penetration of the vulva by the penis (a pre-requisite for the offence of rape) had in fact taken place. Doctors are required to testify to this fact, as also the presence of body fluids and injuries, if any. Note, however, that the law does not require ejaculation. The protocols followed by doctors in examining rape victims across India go much beyond determining whether penetration had occurred. They continue to make assessments of the woman’s sexual history, and play a major role in advancing stereotypical notions relating to women’s sexual mores, by providing a scientific veneer to the process. This process includes the examination of the woman’s hymen and the distensibility of her vagina. Whether the hymen is torn, and if so, if such tears are old or new are noted. Doctors conduct the “two-finger test,” ostensibly to determine whether penetration has occurred. This highly invasive procedure involves the doctor inserting one, two, or more fingers into the woman’s vagina to determine the elasticity of the orifice. If the doctor is able to insert two or more fingers, it ostensibly indicates that the woman has had prior intercourse. The rationale behind this “test” is that if two fingers can pass through the vagina, a body of the size of an erect penis could have passed through the orifice at an earlier point of time.
Let me provide a concrete example of how the stereotypes find their way into the trial process through medical examination.
Assume that in examining an unmarried rape victim, the doctor notes the presence of old tears on her hymen. The doctor also notes that she was able to insert two or more fingers into the vagina of the victim. Although the doctor does not expressly opine that the woman was sexually active, this information is conveyed to the court by way of the medical report. My study showed that in cases where the medical report indicated that the woman had been sexually active before marriage, lower sentences were imposed on the offenders who raped them. In contrast, in cases where the offender had raped a virgin, the sentence was relatively higher. Thus, the sexual history of the victim had an impact on the sentence imposed on the offender.
Another factor related to virginity is the perceived loss experienced by an unmarried victim, in terms of her marriageability. The Supreme Court has in a number of cases noted how rape adversely affects the chances of a woman finding a suitable groom. In this context, the Court has even held that the marital status of the woman can be a relevant factor in rape sentencing. It is not surprising then that offenders who raped unmarried (and virginal) women got higher sentences in contrast to men who raped married women. Further, courts tend to impose lower sentences when a victim who was unmarried when the offence was committed, gets married during the trial. Since the rape did not impact the victim’s ability to get married, the harm caused by the offence is discounted. An egregious example of this approach is the Supreme Court’s decision in Baldev Singh v. State of Punjab (2011), another gang rape case that got a lot of media attention. One of the reasons that the Court gave for reducing the sentence in this case was that the victim was now married.
The second stereotype that affects rape sentencing is the perception that rape is a matter of shame for the victim. The Supreme Court has in fact frequently observed that a woman experiences a “deep sense of deathless shame” as a consequence of being raped. Combined with the notion that a woman considers her chastity and virginity to be invaluable, a myth has developed that on being inflicted with this “shameful” act, a woman will necessarily physically resist her attacker, when sexually assaulted. Such physical resistance, it is believed, leads to injuries on the woman’s body, which then demonstrates that sex was not consensual. Note, however, that the law does not require the woman to resist the attack. The presence of injuries might corroborate lack of consent, but the absence of injuries should not imply consent. Although courts do not appear to infer consent from absence of injuries, I found a marked decrease in sentences in cases where no injuries were present on the woman’s body. Hence, unfortunately, the notion that a woman should physically resist rape makes its way into rape sentencing.
The third interesting finding of my study was that courts consider acquaintance rape to be less traumatic than rape by a stranger. Offenders who were in a romantic relationship with the women they raped got lower sentences, compared to their counterparts who raped women they did not know. In cases of statutory rape where the under-aged girl had consented to intercourse, courts consistently imposed lower sentences on the offenders, based on the understanding that the young woman had otherwise “contributed” to the offence.
Law reform movements, as well as policy-makers have not paid much attention to issues pertaining to stereotypes surrounding rape sentencing. For justifiable reasons, their focus has been on steps to ensure higher convictions in rape cases. In addition to these efforts, there is need for reforms to rid rape sentencing of stereotypes. This would include: first, changing the nature of medical evidence collected in rape cases. Protocols for medical examination of rape victims should be modified, and corresponding changes should be made to medical education syllabi. The second reform required is the formulation of principles to be followed by judges while sentencing rape offenders. Factors that should not be considered in sentencing rape offenders (such as the victim’s sexual mores) should be listed. Currently, a large number of rape offenders whose victims do not adhere to the stereotypical construct of a rape victim get relatively lower sentences. Ensuring principled sentencing, one that is in tune with our constitutional values, is a better guarantee for justice to rape victims, rather than legislative steps providing for capital punishment, chemical castration and the like.
Mrinal Satish is an Associate Professor at the National Law University, Delhi. His doctoral dissertation at Yale Law School examines the issue of rape sentencing in India. He can be contacted at mrinal.satish@aya.yale.edu)
Source- http://www.lawandotherthings.blogspot.in/

Online comes to the common’s man’s defense


The web can be a powerful instrument not just in gathering evidence, support and funds for the undertrials but also in defending the ‘innocent, until proven guilty’. RADHIKA SACHDEV interviews APAR GUPTA. Pix: Apar Gupta
 Sunday, Nov 25 20:28:25, 2012, http://thehoot.org/

Online media, especially social networking sites, have been in the news in India for all the wrong reasons – demand for censorship (such as the Indian government’s controversial proposal to set up a United Nations committee for regulating the net); both left and right wing politicians selectively invoking provisions of the IT Act (Section 66A) and sedition laws that hark back to the Raj days and other means of repressing free expression.

However missing in this piece of action is the creative use of the online medium for individual empowerment, protecting the rights of the common man and lately, crime investigation and evidence gathering by a more progressive clutch of defense lawyers.

Three cases are worth citing here:
  • The Aarushi murder trial, in which friends of the accused parents of the murdered girl have of late started using social media to ward off hostile media attack and its “guilty until proven innocent” stand,
  • The Delhi University-OUP Copyright Case – that started receiving widespread publicity as soon as soon as the campaigning for the University’s photocoping outlet got viral with the setting up of a few independent Facebook groups, along with the publication of letters from eminent DSE alumni such as Amartya Sen, although surprisingly, there is nothing on the case on the official Delhi University Press site.
  • The Guwahati Molestation of a young girl outside a club, where the YouTube video was prominently circulated to raise public angst against the accused.
While abroad, defense attorneys in high profile cases have routinely begun to use their Facebook and Twitter accounts to post legal documents, react to court developments and even raise funds for their clients, in India, the practice is still young. The Hoot caught up with Apar Gupta, a Partner with Advani & Co. to understand how the medium is being used to support the criminal defense system in India.
Q. The evidence collected from the dramatic personae’s emails, or social media accounts in a trial case – are they admissible in courts?
Yes, such evidence is admissible in court. Sections 65A and 65B of the Indian Evidence Act clearly allow for such evidence to be used. Even in cases where the alleged illegality does not stem directly from the social media account itself such evidence can be used. For instance in some matrimonial cases spouses have utilised such evidence to support claims of infidelity.
Q. You mention that “courts have not officially sanctioned the use of social media in such cases which remain beyond the bounds of the proceedings” – what does it mean?
There are no pronouncements or court decisions which comment on the use of evidence which is gathered through social media websites or even parties to a litigation utilizing them during the course of litigation. However there are precedents of parties resorting to the use of websites and social media to generate public sentiment in their favor. A dispute which generated tremendous interest amongst the financial press was the invocation of an arbitration under a clause in a Bilateral Investment Treaty by the Children’s Investment Fund. Children’s Investment Fund which is a minority shareholder in Coal India had objected to the pricing of coal and made a detailed website which contained the correspondence as well as a brief on the dispute.
Beyond this, even in a few high profile cases, parties have made Facebook pages and Twitter accounts. The most visible example of this is the “Justice for Arushi” campaign, currently being run by Dr. Rajesh Talwar and Dr. Nupur Talwar.
In my view such social media campaigns may run into problems with the Contempt of Court Act as they may be termed to be attempts to influence the decision of courts.
Q. Before stepping down as the Chief Justice of India, S H Kapadia had tried his best to get a constitutional bench to pass a gag order against media establishments reporting on legal issues. When there is so little tolerance for “excesses” in the print medium, do you think, the online medium, which by virtue is non-controllable can at all be policed in the manner suggested by the Indian government to the UN Assembly? Will this not curb the one democratic tool of free expression that the common man has? What is your personal opinion on this issue?
Firstly the UN proposals made by India are not proposals to police the internet. The reasons I shirk away from the term, “policing” is that it automatically conjures up the worst aspects of a totalitarian state. The UN proposals are more or less proposals which are under the consideration of the International Telecommunications Union (ITU) which is primarily considering that whether internet communications, like voice communications should be brought within its regulatory umbrella. The Internet at present is run through servers based in the United States which does not reflect its international character. However, at the same time, such regulatory proposals do have the potential to place regulatory regimes for censorship by countries which should be opposed.
Secondly, I cannot agree with the statement that Justice S.H. Kapadia tried his best to pass a gag order against media establishments, even though the ultimate decision in the Sahara case did end up creating a gag writ. It is not my place to attribute motives to Chief Justice of India especially when there is a legitimate concern that press reporting does effect adjudication. For instance take Suresh Kalmadi’s bail application which when was initially rejected, the order quoted a Times of India article which stated that people were losing faith in government due to corruption. While by all means the corrupt should be jailed, we should be careful in keeping under trails locked up for long periods just because we feel that they will not be convicted eventually. A man is presumed to be innocent till conviction and let’s try to maintain that. Here the relevant conditions for grant of bail should be the ones prescribed by law rather than by public sentiment generated by the media.
Also coming to your point on the low tolerance for excesses by the print media, I think that’s a colonial heritage in part the mystique of law and in part the contempt power of the courts. When I think of this problem, a quote which is used in many contempt judgments when the contemptor is pardoned comes to my mind, “the court should have broad shoulders to shrug of such criticism.”
I think this problem will be great given how social media operates. The Delhi High Court has already seen one contempt case, where a practicing advocate has been accused of contempt on the basis of a blog post. I would also like to add that court reporting is often poor and sometimes contemptuous. However the way out for this is more transparency and information flows from the Judiciary itself. Here court transcriptions of proceedings will go a long way in dispelling corridor gossip on corruption and nepotism.
Q. On the flip side, will non-censorship of online medium lead to more ‘media trials” and “miscarriage of justice”? Can you think of an instance in the criminal justice system, where there was a very specific need for curbing the use of this medium? What went wrong?
Yes, however I think that’s a burden that has to be borne. The important point is that specific laws should not be made to target online communications solely and a principal of equivalence should be adopted. Till date, I have to see a case which has caused tremendous outrage online or lead to a court acknowledging the effects of social media. However at the same time, the way people cheered the conviction of Ajmal Kasab was quite disheartening. Even before the sentence was given many people were calling him to be hanged, lynched or shot. Even during the process of appeals many people were mocking the entire process stating the expenses the State had incurred on keeping him safe without realising that the appeals represented the best of aspects of due process which are available in our country.
Q. As a lawyer, what do you think could be the implicit dangers in the free and democratic use of online media, and can this control not come through self-regulation, as is mooted for the other, more traditional mediums, such as print and television? What are the gains of not controlling?
As a lawyer, I believe that there are adequate laws on the books to prosecute online speech. These are the conventional statutes which apply irrespective of the medium and the Information Technology Act and some other provisions which specifically target online communication. Here the real danger is not through courts but through private notices and executive actions which are permitted under the medium specific laws for internet. Such actions often do not have the adequate safeguards which often censor speech which may be permitted under our right to speech and expression under the Indian Constitution.
Q. What’s your stand on the Indian government’s proposal for internet control made to the UN Assembly? Is that feasible or desirable?
My opinion is that India should strongly object to the present proposal on the grounds of sovereignty, as well as, the ITU being an organisation that is ill-suited to regulate internet communications. The grounds of sovereignty are consistent with our earlier representations where we have argued that criminal laws are local in nature and reflect the social mores of a specific country. In such cases, prescribing international content controls encroaches upon state sovereignty. As I have previously stated, the ITU as an organisation is ill-equipped to handle internet communication. To bring it under the present ITR would be putting in place a system which would damage how it works.