25 years’ court data proves RSS chief wrong; 75% of rape convicts from ‘Bharat’ #Vaw


By , TNN | Jan 5, 2013, 05.47 AM IST

25 years' court data proves RSS chief wrong; 75% of rape convicts from 'Bharat'
Activists hotly dispute Bhagwat’s attempt to draw a correlation between “modernity” and rape.
 

NEW DELHI: Women’s groups have criticised RSS chief Mohan Bhagwat‘s view on rape in “India” and “Bharat” for being regressive. But data shows that not only are Bhagwat’s views regressive, they’re also plain wrong.

While the National Crime Records Bureau does not split registered cases of sexual assault by rural and urban areas, Mrinal Satish, an associate professor of law at Delhi’s National Law University, used court data to find that 75% of rape cases that led to convictions over the last 25 years were from rural India.

For his doctoral dissertation at the Yale Law School in the US, Satish looked at all high court and Supreme Court cases involving rape reported in the Criminal Law Journal (which reports criminal law cases) between 1983 and 2009 in which at least one court (trial court, HC or SC) had convicted the accused. The data thus does not include cases in which the accused was acquitted at all levels. Satish also had to leave out cases that were not for some reason reported in the Journal.

He found that over 80% of these rape cases in high courts and close to 75% of rape cases in the Supreme Court came from rural areas. Close to 75% of gang rape cases in HCs and 63% of gang rape cases in the SC came from rural areas. Over 65% of cases involving the rape of a child (less than 12 years old) came from rural areas. On average, 75% of all rape cases in higher courts that had led to at least one conviction came from rural areas. While the numbers are fairly proportional to India’s rural/urban population, they do disprove Bhagwat’s statement that rapes do not take place in rural areas.

“Rape as a tool of caste violence is rampant in rural areas,” says Kalpana Viswanath of the women’s rights group Jagori. “The controlling of women’s bodies through institutions like khap panchayats is also a rural phenomenon,” says Viswanath.

Moreover, activists hotly dispute Bhagwat’s attempt to draw a correlation between “modernity” and rape. For one, custodial rape, which has little correlation with “modernity”, is rampant in India. The case that changed the history of rape law in India, the Mathura rape case in which two policemen in north-east Maharashtra raped a tribal girl in a police station, was a case of custodial rape. Rapes of disabled women, patients in hospitals, children and older women – all with little association with “modernity” – are extremely common, Viswanath adds. “Ultimately this is an attempt to take the debate back to making rape the fault of women, rather than focusing attention on where it’s needed, on society and institutions,” says Viswanath

shame

Supreme Court green signal to inquiry panel for Manipur killings #goodnews #justice


Published: Friday, Jan 4, 2013, 15:04 IST
Place: New Delhi | Agency: PTI

The Supreme Court has finally agreed to appoint a commission to inquire into encounter killings in Manipur.The commission comprising former apex court judge Santosh Hegde, former CEC J M Lyngdoh and a police officer will inquire into the five encounter killings, ruled the apex court.

Earlier, on November 5, the apex court rapped the Manipur government for not filing a report on alleged extra-judicial killings in the state, saying “people are dying out there”. A bench headed by justice Aftab Alam directed Manipur to file its response within two weeks and also asked the attorney general to assist the court in deciding the case. “Do it quickly. People are dying out there. File your report by November 19,” the bench said when the counsel appearing for the state sought six weeks’ time to file the response.

The court’s order came on a public interest litigation (PIL) initiated by an association of the families of the alleged victims, pleading with the apex court to set up a special investigation team and direct inquiry into all such cases. The association said over 2,000 extra-judicial killings have taken place in the state, but no one has been held guilty till date. The petitioner said innocent people with no criminal record had been killed by the security forces and no proper investigation had been carried out in such cases. The NGO had alleged that instead of registering FIRs (first information reports) against BSF personnel, they were registered against the dead and the cases closed.

 

#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/

#Rape- Castration is not the right legal response #Vaw #Torture


ANUP SURENDRANATH, The indu

The view that it will deter rape is misplaced and based on a narrow, sexual intercourse-definition of the crime

There is a fascinating urban legend that Apple’s logo is dedicated to Alan Turing, who committed suicide by biting into a cyanide injected apple. A few years after he was instrumental in breaking the German Enigma code in World War II, Alan Turing was convicted in 1952 for homosexual acts in England. He agreed to the administration of female hormones when faced with incarceration. Apart from the abhorrent aim of such a measure, the scientific claim that hormone injections could alter sexuality proved to be dubious. The intuitive appeal chemical castration has as a method of drastically reducing the incidence of rape, I argue, is largely misplaced because it misunderstands the nature of rape as a crime. Rape is not about sex. Rape is about power, violence, intimidation and humiliation. Attempts to reduce the incidence of rape by controlling the sexual urge of men are bound to be ineffective because they invoke a very shallow and inadequate understanding of rape.

‘More effective’ punishment

Much before the current demand for chemical castration as a legal response to rape, Additional Sessions Judge Kamini Lau, while sentencing Dinesh Yadav in May 2011 for raping his 15-year old step-daughter for four years, called for a debate on castration as an alternative to incarceration in rape cases. Sentencing Dinesh Yadav to the minimum possible punishment of 10 years for such a crime under Section 375(2) of the Indian Penal Code, Judge Lau indicated that castration, surgical or chemical, would perhaps be a far more effective method to prevent rape. While contemplating the legal and ethical aspects of such a measure, it is important that we understand the precise terms of the suggestion, its potential to reduce the incidence of rape and its potential for abuse.

Clarity on the meaning of some of the terms might be useful at this juncture. Surgical castration does not mean removal of the penis, but is instead the irreversible surgical removal of the testosterone producing testes. Chemical castration involves injecting anti-androgen drugs that suppress the production of testosterone as long as the drugs are administered.

Modern legal systems have flirted with biological control of sexual functions for a long time for a variety of reasons. Forced sterilisation of criminals and intellectually disabled people through legislation to protect the purity of the gene pool was seen as an acceptable response to the eugenics movement in Europe and the United States in the early 1900s. The United States Supreme Court inBuck v. Bell (1927), upheld the constitutionality of the 1924 Virginia statute that authorised the forced sterilisation of intellectually disabled people (‘mentally retarded’ was the term in the statute). Vehemently endorsing the eugenic aims of the statute, Justice Oliver Wendell Holmes Jr. permitted the forcible sterilisation of an 18-year old woman, with an alleged mental age of nine years and a family history of intellectual disability, with the infamous words that ‘three generations of imbeciles were enough’. Though Buck v. Bell has never been explicitly over-ruled, the U.S. Supreme Court’s decision in Skinner v. Oklahoma (1942) and the events in Nazi Germany considerably dented the popularity of forced sterilisations as part of the eugenics agenda. Forced sterilisations in the best interest of the intellectually disabled continued in the United States till the early 1980s and it was in the mid-1990s that the debates around chemical castration as a response to rape surfaced as a result of legislation in certain American States.

Once we get past the historical baggage of the term ‘castration,’ the strongest argument in favour of chemical castration is that it is a non-invasive, reversible method of nullifying the production of testosterone and thereby controlling extreme sexual urge. The use of Depo-Provera in many American States subsequent to chemical castration legislation does indicate that it reduces the risk of recidivism. However, such an approach limits the understanding of rape to the framework of sex. Irrespective of the differences in their positions on rape, influential feminists like Susan Brownmiller, Catharine MacKinnon, Andrea Dworkin, Ann Cahill, etc., agree that rape is not about the manifestation of extreme sexual urge. Violence, power, aggression and humiliation are central to understanding rape, and sex is only a mechanism used to achieve those aims.

Addressing the sexual element of rape does not address the violence and humiliation that rape is intended to inflict. Responding to a question on whether chemical castration for child molesters works, Catharine MacKinnon in an interview with Diane Rosenfeld (March 2000) captured the issue at hand by saying that “they just use bottles”. Castration as a response to rape furthers the myth that rape is about the uncontrollable sexual urge of men.

The limited role that sex has to play in understanding rape is further borne out by the fact that not all sex offenders are the same. In essence, an understanding that requires us to look at rapists merely as individuals engaging in deviant sexual behaviour is inaccurate. Rapists fall into different categories including those who deny the commission of the crime or the criminal nature of the act; blame the crime on factors like stress, alcohol, drugs or other non-sexual factors; rape for reasons related to anger, shaming, violence, etc; rape for reasons connected to sexual arousal and specific sexual fantasies, etc. Administering anti-androgens to rapists outside the last category will not be an effective response to check the incidence of rape. Mapping the long standing demand in India to reform the definition of rape (beyond penile-vaginal penetration) to include object/finger-vaginal/anal penetration on to the different categories of sexual offenders shows that a sexual intercourse-based understanding of rape is extremely narrow.

Gender violence

Even the most ardent supporters of chemical castration recognise that administration of anti-androgens without relevant therapies defeats the point of the entire exercise. Given the significant side-effects of chemical castration, a law that would require indefinite administration of anti-androgens for sex offenders is likely to be unconstitutional. Even if the argument is that governments must invest in chemical castration even if it means a minuscule effect on the incidence of rape, it would require State governments to put in place a rigorous system of providing therapy for it to be a constitutional option. Given the condition of state health care services in India, there are very good reasons to be sceptical about the feasibility of providing such therapy.

It is difficult not to succumb to the intuitive appeal of chemical castration as a response to rape. But it is an intuitive appeal that fades away on intense scrutiny. Intuition can be a great asset in politics of all sorts, but it is best avoided while contemplating a law requiring huge public investment, whose potential for abuse is immense and the benefits of which are, at best, uncertain.

Any meaningful attempt to protect women against rape must engage with gendered notions of power entrenched in our families, our marriages, our workplaces, our educational institutions, our religions, our laws, our political parties and, perhaps, worst of all, in our minds. There are many violent manifestations of these entrenched patterns of power in our society and while rape is certainly one of them, it would be a great disservice to empowerment of women in this country to not attach the same kind of urgency and significance to gender violence beyond rape.

(Anup Surendranath is an Assistant Professor of Law, National Law University, Delhi, and doctoral candidate at the Faculty of Law, University of Oxford.)

 

#India- a ray of hope for Afzal, other death-row prisoners


V. VENKATESAN , The Hindu, New Delhi Dec 17, 2012

  • A recent Supreme Court ruling could make the government give the benefit of the doubt to 14 death-row convicts including Afzal Guru. File photo
    The HinduA recent Supreme Court ruling could make the government give the benefit of the doubt to 14 death-row convicts including Afzal Guru. File photo

Supreme Court ruling gives the benefit of the doubt to accused

The Supreme Court judgment, in the case of Sangeet v. State of Haryana, delivered on November 20 could make the government give the benefit of the doubt to 14 death-row convicts including Afzal Guru, whose mercy petitions have been turned over to it by the President for fresh advice.

The one mercy petition presently pending with President Pranab Mukherjee, after the receipt of advice from Union Home Minister Sushilkumar Shinde, also carries the taint of flawed death sentence by the Supreme Court.

The Supreme Court’s five-judge Constitution Bench judgment in Bachan Singh v State of Punjab (1980) is the source of contemporary death penalty jurisprudence in India. It limited the death penalty to the rarest of rare crimes, and laid down the principle that the courts must impose the death sentence on a convict only if the alternative sentence of life imprisonment is unquestionably foreclosed. For achieving these twin objectives, the court held that judges must consider the aggravating features of the crime, as well as the mitigating factors of the criminal. However, the application of its principles by the courts to various cases has been very uneven and inconsistent.

The Sangeet judgement has reaffirmed that Bachan is the correct precedent for awarding death penalty. The relevant findings of the two-Judge Bench comprising Justice K.S. Radhakrishnan and Justice Madan B. Lokur in Sangeet, to paraphrase, are:

1. The reliance on Machhi Singh v. State of Punjab, delivered by a three-Judge Bench in 1983, as a valid legal precedent by many subsequent Benches to justify death sentences is flawed. Machhi Singh sought to compare aggravating circumstances pertaining to a crime with the mitigating circumstances pertaining to a criminal. These are completely distinct and different elements and cannot be compared with one another. A balance sheet cannot be drawn up of two distinct and different constituents of an incident. Bachan Singh resolutely refrained from balancing these elements, because it leads to arbitrary decisions by a Judge.

2. Machhi Singh sought to standardize crimes into five absolute categories, in order to identify the rarest of rare crime deserving death sentence. These five categories are manner of commission of murder, motive for commission of murder, anti-social or socially abhorrent nature of the crime, magnitude of crime and personality of victim of murder. These categories enlarge the scope for imposing death penalty that was greatly restricted by Bachan Singh.

3. Despite Bachan Singh, primacy still seems to be given to the nature of the crime. The circumstances of the criminal, referred to in Bachan Singh, appear to have taken a bit of a back seat in the sentencing process.

The Hindu has scrutinized each Supreme Court judgment in the 15 cases and found that applying Sangeet the executive could recommend commuting the death sentences in all the cases.

 

P Rajeeve’S motion in #Rajyasabha asking the amendment of #66A #ITact


P Rajeeve MP Rajya Sabha who has earlier moved the annulment montion in the Rajya Sabha is now moving a Private member motion today in the RS demanding the ammendment of IT act. The text of his speech is as follows:

1. SHRI P. RAJEEVE to move the following Resolution: –
“Having regard to the fact that –
(i) the Internet, an international network of interconnected computers that enables millions of people to communicate with one another incyberspace and to access vast amounts of information from around the world has provided an unprecedented platform for citizens to exercise their fundamental right of freedom of speech and expression, the freedom to create and innovate, to organize and influence, to speak and be heard;

(ii) in the last few months, a number of cases have come to light on how section 66A of the Information Technology Act, 2000 (herein after referred to as Act) is being arbitrarily used by the law enforcement agencies to arrest citizens in various parts of the country for posting comments on internet and social networking websites;

(iii) although the offense is bailable, the citizens are being detained without being granted bail and various countries have criticized these incidents as a slap on India‘s democracy;

(iv) the language and scope of legal terms used under section 66A of the Act are very wide and capable of distinctive varied interpretations with extremely wide parameters which have not been given any specific definitions under the law;

(v) clause (a) of section 66A of the Act uses expressions such as ‘grossly offensive’ and ‘menacing character’ which are not defined anywhere and are subject to discretionary interpretations;

(vi) clause (b) of section 66 A prescribes an imprisonment term up to three years for information that can cause annoyance, inconvenience, insult, criminal intimidation, thereby bundling disparate terms and providing similar punishment for criminal intimidation and causing inconvenience;

(vii) clause (c) of the same section although intended to handle spam nowhere defines it and makes every kind of spam a criminally punishable act, which is also against the world-wide norms;

(viii) the offence under section 66A of the Act is cognizable, and has made it possible for police to arrest citizens at odd times for example arresting two 21 years old women in Mumbai after sunset and a businessman at 5.00 a.m. in Puducherry;
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(ix) right to freedom of speech and expression is the foundation of all democratic countries and is essential for the proper functioning of the process of democracy;
(x) only very narrow and stringent limits have been set to permit legislative abridgment of the right of freedom of speech and expression;
(xi) the Supreme Court has given a broad dimension to Article 19 (1)(a) by laying down that freedom of speech under Article 19 (1)(a) not only guarantees freedom of speech and expression, it also ensures the right of the citizen to know and the right to receive information regarding matters of public concern;
(xii) in interpreting the Constitution we must keep in mind the social setting of the country so as to show a complete consciousness and deep awareness of the growing requirements of the society and the increasing needs of the nation and for this, the approach should be dynamic, pragmatic and elastic rather than static, pedantic or rigid;

(xiii) there are tremendous problems in the way section 66A of the amended Act has been drafted as this provision though inspired by the noble objectives of protecting reputations and preventing misuse of networks, has not been able to achieve its goals;

(xiv) the language of section 66A of the amended Act goes far beyond the reasonable restrictions on freedom of speech, as mandated under Article 19 (2) of the Constitution of India;

(xv) India, being the world’s largest vibrant democracy, reasonable restrictions on freedom of speech need to be very strictly construed and section 66A of the amended Act, needs to be amended to make the Indian Cyber law in sync with the principles enshrined in the Constitution of India and also with the existing realities of social media and digital platforms today;

(xvi) it has been pointed out that section 66A of the Act has been based on United States Code, Title V (Sections 501 & 502) of Telecommunication Act titled Communications Decency Act (CDA), it must be brought to the notice of this House that the United States Supreme Court has held that the CDA’s “indecent transmission” and “patently offensive display” provisions which abridge “the freedom of speech” protected by the First Amendment and thus unconstitutional, for instance, its use of the undefined terms like “indecent” and “patently offensive” provoke uncertainty among speakers about how the two standards relate to each other and just what they mean;

(xvii) the vagueness of such a content-based regulation, coupled with its increased deterrent effect as a criminal statute, raises Special First Amendment concerns because of its obvious chilling effect on free speech; and

(xviii) it has also been stated that section 66A of the Act has been based on United Kingdom’s section 127 of the Communication Act, 2003 which addresses improper use of public electronic communication network but the application of that section is restricted to a communication between two persons using public electronic communications network, i.e., mails written persistently to harass someone and not “tweets” or “status updates” that are available for public consumptions and which are not intended for harassment, also, the intention or mens rea element is crucial in it and further, the maximum punishment has been only up to six months in contrast to the three years mandated by Section 66A of the Act,

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this House urges upon the Government to –
(a) amend section 66A of the IT Act, 2000 in line with the fundamental rights guaranteed under the Constitution of India;
(b) restrict the application of section 66A of the Act to communication between two persons;
(c) precisely define the offense covered by Section 66A of the Act;
(d) reduce the penalty imposed by section 66A of the Act; and
(e) make the offense under section 66A of the Act a noncognizable
offence.

 

#India- SC appalled by ‘lynching-like’ #deathpenalty


By , TNN | Dec 12, 2012,

SC appalled by 'lynching-like' death penalty
The Supreme Court on Tuesday expressed its deep distress and displeasure while censuring a “lynching-inspired” Tamil Nadu trial court for awarding death penalty to a person accused in a dacoity-cum-murder case as a deterrent to eliminate crime from society.

NEW DELHI: The Supreme Court on Tuesday expressed its deep distress and displeasure while censuring a “lynching-inspired” Tamil Nadu trial court for awarding death penalty to a person accused in a dacoity-cum-murder case as a deterrent to eliminate crime from society.

“The trial judge, while showing special reasons, referred to laws prevailing in Arab countries like imposing sentence of ‘slashing’, ‘beheading’, taking organ for organ like ‘eye for eye’, ‘tooth for tooth’ and says these are developments of criminal jurisprudence,” said a bench of Justices K S Radhakrishnan and Dipak Misra, surprised by the special knowledge of the trial judge in criminal jurisprudence.

It was another matter that the apex court found no cogent evidence against the accused and acquitted him of all charges in the case, though he had already undergone eight years imprisonment and stayed under the shadow of gallows for some time till the Madras High Court commuted the sentence to life imprisonment.

What riled the apex court bench was the inspiration behind the trial court judge imposing capital punishment on Omprakash, who was allegedly part of a dacoit gang from northern India engaged in a series of crimes in Tamil Nadu. The trial judge had based its decision on his special knowledge about legal sanction by American courts to “lynching” and the “eye-for-eye” and “tooth-for-tooth” punishment institutionalized in some Arab countries.

The trial judge also said he was of the opinion that “the imposition of death sentence under Section 396 of Indian Penal Code is the only weapon in the hands of judiciary under the prevailing law to help eliminate crime”.

Worse, the trial court appeared to give vent to its parochialism by talking about gangs from Haryana travelling 2,000 km to commit crime in “our state (TN)” and justifying imposition of death penalty to “create fear among criminals who commit such crimes”.

First of all, the apex court put the record straight by reminding one and all that in Indian jurisprudence, life sentence was the norm and death sentence an exception. Justice Radhakrishnan, writing the judgment for the bench, said, “The sessions court has gone astray.”

He added, “We are surprised to note the ‘special reasons’ stated by the judge. We fail to see why we import the criminal jurisprudence of America or Arab countries to our legal system. The trial judge speaks of sentence like ‘lynching’ and described that it has attained legal form in America.”

Amazed by the ignorance of the sessions judge, the bench said, “Lynching means kill someone for an alleged offence without legal trial, especially by hanging. The trial judge failed to note that the constitutionality of death sentence came up for consideration before the US Supreme Court inWilliam Henry Furman vs State of Georgia, which involved three persons under death sentence. The court held death penalty to be cruel and unusual punishment in violation of the eighth and tenth amendments.”

The apex court said the trial judge’s inclination to bring in alleged system of lynching to India and to present is as a special reason was “unfortunate and shows lack of exposure to criminal laws of this country”.

“We are also concerned with the question whether the criminals have come from 20 km away or 2,000 km away. The trial judge says that they have come to ‘our state’, forgetting the fact that there is nothing like ‘our state’ or ‘your state’. Such parochial attitude shall not influence or sway judicial mind. The judge also further states, since the accused persons had come from a far away state, about 2,000 km to ‘our state’ for committing robbery and murder, death sentence should be imposed on them. The judge has adopted a very strange reasoning, needs fine tuning and proper training,” the bench said.

Taking exception to the trial judge’s logic that death sentence was the only weapon to eliminate crime, the bench of Justices Radhakrishnan and Misra said, “Judiciary has neither any weapon in its hand not uses it to eliminate crimes. Duty of the judge is to decide cases which come before him in accordance with the Constitution and laws, following the settled judicial precedent.”

It added, “A judge is also part of the society where he lives and also conscious of what is going on in the society. Judge has no weapon or sword. Judge’s greatest strength is the trust and confidence of the people, whom he serves. We may point out that clear reasoning and analysis are the basic requirements in a judicial decision.”

The bench asked the National Judicial Academy and State Judicial Academies to educate judicial officers in this regard.

dhananjay.mahapatra@timesgroup.com

 

When corporations abuse human rights


Can a corporation face civil liability in a U.S. court for aiding a foreign government’s acts of torture and murder of innocent villagers? That was the question before the Supreme Court on Oct. 1 when it heard oral arguments in Kiobel vs. Royal Dutch Petroleum.

The plaintiffs, all Nigerian nationals now living in the U.S., claimed that Dutch, British and Nigerian corporations affiliated with Shell (and engaged in oil exploration and production in Nigeria) assisted the Nigerian military in committing human rights abuses between 1992 and 1995 to quash protests over grave environmental damage caused by the oil operations.

The Supreme Court initially heard this case in its last term on the question of corporate civil liability under a U.S. statute that permits an “alien” to bring a civil action for violation of international law in the U.S. federal court. A divided Second Circuit Court of Appeals had ruled that  customary international law does not recognize corporate civil liability and hence corporations are immune under the statute in question, the Alien Tort Statute. That reasoning was subsequently rejected by three other federal courts of appeal.

The Supreme Court asked the parties for supplemental briefing on whether the statute allows courts to hear a case concerning violations of international law “occurring within the territory of a sovereign other than the United States” — that is, whether the law applies extraterritorially.

The statute in question, enacted by the first Congress in 1789, lay dormant for two centuries until the Second Circuit decided a case in 1980 which involved a Paraguayan tortured and killed in Paraguay. The court held that since torture is prohibited under international law, jurisdiction is proper under the statute, and it found the defendant liable for huge damages. Subsequently, in another decision, the Supreme Court left the door open for a federal court to hear a case based on an international norm accepted by the civilized world as “specific, universal, and obligatory.” Torture and extrajudicial execution, as occurred in this case, fit that definition. But the court has not ruled on whether corporations can be sued under that statute.

The Kiobel case has broader implications. Will the Supreme Court with its conservative majority insulate companies from liability for human rights violations committed abroad? The five-member majority led by Chief Justice John Roberts has in the last few years issued a series of opinions favoring corporations, such as the 2010 Citizens United ruling.

What are the court’s options? It could rule that while the Alien Tort Statute applies to persons it does not apply to corporations. However, under American law, plaintiffs have been able to sue corporations for more than 200 years. Why should this principle not apply to claims against corporations under the Alien Tort Statute in the case of severe human rights violations? If corporations have constitutional rights, as Citizens United established, why should they not be held to the same standards as persons?

On the other hand, the court could hold that the statute does not apply to acts committed abroad and thus corporations committing human rights violations abroad are shielded from liability.

The United States must uphold its tradition of protecting international human rights by not allowing a corporation to avoid liability when it has committed heinous human rights crimes abroad.

Ved P. Nanda (vnanda@law.du.edu), Thompson Marsh Professor of Law and director, International Legal Studies Program, University of Denver Sturm College of Law.

“To those who believe in resistance, who live between hope and impatience and have learned the perils of being unreasonable. To those who understand enough
to be afraid and yet retain their fdenverpost.com

 

#India-For a moratorium on death sentence


V. VENKATESAN, Dec 10, The Hindu

There is a need to identify cases in which the courts might have erred in applying the Bachan Singh principle that limits the imposition of the death penalty

The Supreme Court’s five-judge Constitution Bench judgment in Bachan Singh (1980) is the source of contemporary death penalty jurisprudence in India. Its major contribution was to limit the imposition of death penalty to the rarest of rare crimes, and for laying down the principle that the courts must impose the death sentence on a convict only if the alternative sentence of life imprisonment is unquestionably foreclosed. For achieving these twin objectives, the court held that judges must consider the aggravating features of the crime, as well as the mitigating factors of the criminal.

However, the application of its principles by the courts to various cases before them has been very uneven, and inconsistent. This has naturally led to the criticism that the jurisprudence suffers from a judge-centric approach, rather than a principles-centric approach.

Matter of concern

It is a matter of concern when this criticism emanates from the judiciary itself, as it smacks of its helplessness. The frequency of such criticism from the judiciary may appear to be exercises in genuine introspection but to the litigants, the very credibility of the court’s death penalty decisions is at stake.

The execution of death row prisoners in India might have come to a near standstill, with only one in the last decade, and another recently. Yet, the frequency of confirmation of death sentences by the Supreme Court has created a large pool of death row prisoners in the country, who may be living between life and death constantly for many years, till the executive decides on their mercy petitions. When the Supreme Court time and again admits that many of these prisoners might have been sentenced on the basis of erroneous legal precedents set by itself, the executive cannot pretend to be unconcerned.

The latest admission of such error is to be found in the judgment delivered by Justice Madan B. Lokur for himself and on behalf of Justice K.S. Radhakrishnan, in Sangeet & ANR vs. State of Haryana, on November 20.

The genesis of Sangeet can be traced to another Supreme Court judgment delivered in 2009. In Santosh Kumar Satishbhushan Bariyar v. State of Maharashtra, a two-judge Bench admitted to error in the sentencing to death of seven convicts by the previous benches of the court. Similar error was immediately noticed in the sentencing to death of six more convicts, after the delivery of judgment in Bariyar, taking their total to 13.

The error was the reliance by the court on a legal precedent, which Bariyar declared as per incuriam. The term, per incuriam, refers to a decision which a subsequent court finds to be a mistake, occurring through ignorance of a relevant authority, and therefore not a binding precedent.

Erroneous precedent

The erroneous legal precedent was Ravji v. State of Rajasthan, decided in 1996 by a two-judge Bench. In Ravji, the court had found only characteristics relating to the crime, to the exclusion of the criminal, as relevant to sentencing. Bariyar noted with disapproval that the court had relied on Ravji as an authority on the point that in heinous crimes, circumstances relating to the criminal are not pertinent, in six cases. This was inconsistent with the Bachan Singh ruling by the five-Judge Constitution Bench in 1980, which had shifted the focus of sentencing from the “crime” to the “crime and the criminal”.

In Sangeet, the Radhakrishnan-Lokur Bench has continued the judicial scrutiny started by Bariyar of post-Bachan Singh death penalty cases, to see if they have complied with the requirements of the law. Thanks to this scrutiny, five other cases which resulted in the wrongful sentencing to death of six more convicts have come to light. They are Shivu, Jadeswamy, B.A. Umesh, Rajendra Pralhadrao Wasnik, Mohd. Mannan, and Sushil Murmu. The former President, Pratibha Patil, has already commuted Murmu’s death sentence to life imprisonment.

Back to 13

Five of the 13 convicts identified in and after Bariyar have already got their sentences commuted to life imprisonment by competent authorities. With Sangeet pointing to five more such convicts, the total number of prisoners to be taken off the death row is back to 13 again.

Unlike Bariyar, however, Sangeet has not declared the five erroneous judgments per incuriam. But the result of the scrutiny in both the cases is the same: no future Bench can cite these cases on a point of law, without inviting the Ravji taint. The recent appeal by 14 former judges to the President to spare the lives of the eight convicts, who have been wrongly sentenced to death by the Supreme Court must, therefore, apply equally to these five convicts identified in Sangeet.

It is not unusual to come across observations by the courts while justifying the death sentence, that there is extreme indignation of the community over the nature of the crime, and that collective conscience of the community is petrified by the extremely brutal, grotesque, diabolical, revolting or dastardly manner of the commission of the crime. After making these observations, it is easy for the courts to jump to the conclusion that the criminal is a menace to society and shall continue to be so and he cannot be reformed.

These are empty clichés repeated ad nauseam without any basis. Sangeet, therefore, gently reminds the courts about the need to back such observations with some material. The nature of the crime alone cannot form such material, it has held.

Sangeet has pointed out a grave infirmity with regard to the sentencing of Umesh and Sushil Murmu, to death. The Supreme Court found both Umesh and Sushil Murmu incapable of rehabilitation and, therefore, deserving of the death sentence because of their alleged involvement in crimes other than those for which they were convicted — turning upside down the doctrine of presumption of innocence, the cornerstone of our criminal jurisprudence.

Bachan Singh, delivered by a five-judge Constitution Bench, clearly discarded the proposition that the court must balance aggravating and mitigating circumstances through a balance sheet theory. The theory requires weighing aggravating factors of the crime against the mitigating factors of the criminal. In Machhi Singh (1983), however, a three-judge Supreme Court Bench, brought the balance sheet theory back, and gave it legitimacy. The theory has held the field post-Machhi Singh.

Sangeet has sought to revive the Bachan Singh dictum that the aggravating circumstances of the crime and the mitigating circumstances of the criminal are completely distinct and different elements, and cannot be compared with one another. Therefore, it has held that a balance sheet cannot be drawn up of two distinct and different constituents of an incident, as required by Machhi Singh.

Sangeet holds the balance sheet theory responsible for much of the arbitrariness in judging whether a case falls under the rarest of rare category, a test enunciated in Bachan Singh. It also endorses the proposition that by standardising and categorising crimes, Machhi Singh considerably enlarged the scope for imposing the death penalty, that was greatly restricted by Bachan Singh.

The Radhakrishnan-Lokur Bench, being a two-judge Bench, could not have overruled Machhi Singh, despite its obvious flaws, and the source of much of the inconsistency in our death penalty jurisprudence. A three-judge bench in Swami Shraddhanand II in 2008 had raised similar doubts about Machhi Singh; but the courts continue to invoke it.

In its judgment delivered on August 29, among other things, the Supreme Court relied on the flawedMachhi Singh for its reasoning, and used the balance sheet theory, arraigned by Sangeet, to sentence Ajmal Kasab.

The serious issues raised in Sangeet are incapable of being resolved by the judiciary itself. Any delay in their resolution will inexorably create more death row convicts, than what is justified legally. There is indeed a case for the government to immediately announce a moratorium on executing death sentences and set up a Commission to identify the cases in which any of the courts — trial courts, high courts and the Supreme Court — might have erred in correctly applying the Bachan Singh principles, while sentencing. The findings of the Commission will be useful for deciding the future of death sentence in the country.

#India-First commutation of death sentence by President Pranab Mukherji #goodnews


English: Minister of Finance Pranab Mukherjee ...

English: Minister of Finance Pranab Mukherjee in the Plenary Session Post-Crisis Economic Order: How Can Free Market and control be Balanced? Participants captured during the World Economic Forum’s India Economic Summit 2009 held in New Delhi, 8-10 November 2009. (Photo credit: Wikipedia)

 

NEW DELHI, December 3, 2012

 

V. Venkatesan

 

 

 Atbir, lodged in Tihar Jail, New Delhi, is the first death-row convict whose sentence has been commuted by President Pranab Mukherjee. Mr. Mukherjee passed the order on November 15. Atbir is one of the 16 death-row convicts whose mercy petition, Pratibha Patil, Mr. Mukherjee’s predecessor, left undecided while completing her tenure.

Atbir was convicted and sentenced to death by a sessions court in 2004 for the murder of his step mother, step sister and step brother in 1996 over a property dispute. The High Court confirmed the sentence in 2006 and the Supreme Court dismissed his appeal against the sentence in 2010. The Ministry of Home Affairs (MHA) recommended commutation as the crime had a socio-economic basis.

According to the Rashtrapati Bhavan website, Mr. Mukherjee now has only one pending mercy petition to be decided by him.

The remaining petitions appear to have been sent back to the MHA to facilitate fresh submission of recommendations.

 

 

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