Human Rights

Should media outrage affect sentencing in criminal trials?

TennilleDuffy_authorI wish to respond to one aspect of Sohini Chatterjee’s recent post on the sentence handed down in Ram Singh and Others – the ‘Delhi gang rape trial’. She said that the judge had recognised the outrage caused by this case as an aggravating factor and seems to argue that the supposed effect of the media attention on the sentence was a good thing.

I should point out that this is, clearly, not Ms. Chatterjee’s opinion alone. Various manifestations of this sentiment have echoed across Facebook, the comments sections on blogs and news websites, and in various reports about the case. Many people feel that justice has been done and that the court, the judge, and the criminal justice system correctly responded to the outrage felt across society.

I do not think that Judge Khanna’s sentencing order reveals that it was affected by the furore across India even though I have no doubt that he was well aware of it. Whether media reports can and should be taken into account in sentencing, however, is another question entirely.

Let me state at the outset that I am passionately opposed to the death penalty. As it stands however, the death penalty is an available punishment in India, and has been confirmed as constitutional by the Supreme Court of India.

The idea that the media can, and should, have an effect on sentencing and other aspects of the operation of the criminal justice system, however, is worth examining more deeply. Firstly, can the media, and what ‘they’ are communicating, be discerned or measured? Secondly, we need to examine the notion that that the media—whoever or whatever they are—are some kind of spokesperson for society, or the conduit through which society expresses itself. And thirdly, should judges and courts —while sentencing—take into account the expression of society’s demands or desires through the media? Even this minimal unpacking of the idea begins to expose its flaws.

Let us take the first contention. Can we (or a judge in any criminal case in India) know what the media is saying about any particular case? What if the message is not unanimous? Even in a case such as this, where one might be able to readily detect an overall sense of outrage, disgust, and fury, there were other, discordant voices present across the country. We know enough of the history of how rape is treated and reported in India, for example, to know that many different attitudes—foolish, conservative, and ignorant among others—prevail. Further, what kind of media should we observe? The mainstream media and its attendant business and political interests? Facebook and Twitter posts? Independent blogs? Civil society publications? These days, anyone can be and is a commentator. How can any one person process and take all of those opinions into account?

Students protest the rising violence against women at Raisina Hill and Rajpath in New Delhi on December 22, 2012. All three images are from Wikimedia Commons and have been published here under a Creative Commons Attribution-Share Alike 3.0 Unported license.
Students protest the rising violence against women at Raisina Hill and Rajpath in New Delhi on December 22, 2012. All three images are from Wikimedia Commons and have been published here under a Creative Commons Attribution-Share Alike 3.0 Unported license.

Secondly, is the media really the conduit through which society expresses itself? I doubt that, especially in a country and a polity as diverse as India, that could ever be the case. The mainstream media certainly can’t be said to speak for all people in this country. As with all other institutions in society, the media speaks for those in power and those with influence much more than those without. And whilst I am certainly not suggesting that this case didn’t deserve the media attention it has received, I am also not the first person to observe that the media treated this case exceptionally. Yes, that may be due in part to the public outrage. But was the public outrage not also fuelled and enabled, in part, by the media attention?

Many of us are equally outraged or upset by every horrific rape and murder. Reports of fresh cases—the five-year-old-girl who was held captive and raped by a neighbour in Delhi, the reports of the rape of girls in front of their mothers during the recent riots in Muzzafarnagar, and the rape of a woman also on a bus, in Punjab, just two weeks after the Delhi incident—are seen every week across the country. Who weighs the severity of these countless cases, and measures up the column inches or television minutes to be awarded to each? What about the countless others we know that we do not even hear about? Is the consequence to be that, the more media attention a case gets, the harsher the sentence? Or, alternatively, that those who commit crimes against the powerless and those deemed somehow less worthy of media attention, receive more lenient sentences? Obviously, these cannot be results that we seek to achieve in any criminal justice system.

As a matter of general principle, judges should not be looking to the media when they are determining sentences, for all of the reasons and difficulties already described. “Trial by media” is seen as a negative phenomenon for a reason. A properly functioning court system can help avoid erroneous findings of guilt, convictions, and sentences handed down without proper recourse to facts proved beyond reasonable doubt and the imposition of unfair or inconsistent punishments. If a judge is looking to the media in some cases, how is consistency to be achieved? Which commentators’ idea of fairness or outrage is to be abided by?

Even looking at the specific comments and findings made by Judge Yogesh Khanna in this case, I do not think that we can conclude that he was looking to the reported public reaction to this case in delivering his sentence. There is a difference, seen widely across the criminal law, between judges talking about concepts such as “collective conscience” and “community feeling” and judges actually saying “I have observed that people are particularly upset about this particular incident, and that is an aggravating factor”.

SupremeCourtofIndia_aggravatingcircumstance_extremeindignation_abhorrenceOne case that Judge Khanna refers to is Gurvail Singh @ Gala and Another v. State of Punjab, a 2013 judgment of the Supreme Court that Ms. Chatterjee has also referred to in her post. In that case, the Court spoke of “whether the society will approve the awarding of death sentence to certain types of crime or not.” “While applying this test, the Court has to look into variety of factors like society’s abhorrence, extreme indignation and antipathy to certain types of crimes like rape and murder of minor girls”.

As we can see, the Supreme Court is referring not to a specific crime or specific public expressions of outrage. They are not speaking about some way in which judges could or should react to particular, one-off instances of outrage. Rather, they are talking about a certain category or type of crime, such as the rape and murder of minor girls.

Judges are members of the community too. For better or for worse, they are given the power to impose sentences within the criminal justice system. Part of that role is that they must gauge the level of seriousness of a crime and the level of general social abhorrence of various types of crime. As much as is humanly possible, they must attempt to do so in a principled and consistent way. To look to the media to inform their sentence, or to react more harshly to highly publicised crimes, goes against all sentencing principles, and should be discouraged.

As a member of the community, Judge Khanna was entitled to take into account not only the barbaric and hideous nature of the acts that were committed by these men, but also the fact that it was the type of crime that society increasingly found abhorrent, despicable, and outrageous. On the face of his judgment, it appears he did just that – no more, no less. Given the change in rape laws following this crime, there is no doubt that this sentiment will be echoed in many cases and sentences to come.

(Tennille Duffy is part of the faculty on

Human Rights

For the “persons” who are women

NainaKapur_equalitylawIn 1915, having completed all the necessary qualifications in law, Regina Guha applied to be a pleader at the Calcutta Bar. Her application found its way to the High Court of Calcutta where a four-judge bench had to determine whether “persons” admitted as “pleaders” included women. With unhesitating certainty, the bench declared they had “no escape from the position that the Legislature in this country never contemplated the admission of women to the rank of Legal Practitioners.” There was nothing in the legislation which prohibited women as pleaders. Moreover, degrees in law could be conferred on both men and women in Calcutta University. But the bench was adamant.

“There may obviously be weighty reasons why in the University Act words importing the masculine gender may be taken to include females… in the Pleaders Act no such intention can reasonably be attributed to the Legislature.”

In hindsight, the overt gender bias within such reasoning is glaringly obvious. Today however, the heart of such inequality lies in the subtlety of a subtext and its impact on women.

Much has been made of the fact that three out of four lawyers appointed as Senior Advocates by the Supreme Court last week were women. When it comes to equality however, context is relevant. According to a 2013 list of Senior Advocates designated by the Supreme Court of India since 1955, only five out of 309 have been women. As of this week, that number increased to eight. Even that has taken close to fifty years. Of the 200-plus lawyers appointed as Senior Advocates in Delhi and Mumbai over a period of twenty years (up to 2011), only three were women.

Is it a trend? For now, that might be premature. While headlines on such appointments make visible the obvious contribution women are making within the legal profession, the trickle of numbers betrays an underlying subtext of systemic bias within which decision-making about such appointments (be it the Bench or the Bar) continues to take place. That is why the message of leadership matters. To his credit, the transitional ease with which the current Chief Justice of India, through such appointments, has signaled a readiness to abandon the gendered myopia which plagues the profession is certainly welcome. Equality can be a place from which stereotypes and prejudices are challenged or from where they are perpetuated. From that perspective, I would urge more such champions, within law firms, legal academia, social media, civil society law groups, and other law related workplaces to follow the Chief Justices’ cue- assault the system with women and level the playing field.

In that vein, as one amongst a growing population of women who now embody the profession of law, I applaud my professional peers — Vibha Dutta Makhija, Kiran Suri, and dear friend Meenakshi Arora for the recognition they have all earned and justly received.

Regina would be beaming — for the “persons” who are now apparently women — as are all of us.

(Naina Kapur is a preventive law and equality advocate.)

Human Rights

15 years of Prosecutor v. Akayesu, where rape became genocide

Today (September 2) marks the fifteenth anniversary of the landmark case of Prosecutor v. Akayesu. This case was a triumph of sorts for humanity. It was the first time that the 1948 Convention on the Prevention and Punishment of the Crime of Genocide  (“the Geneva Convention”) was enforced by an international judicial body for the conviction of the crime of genocide. This judgment also finally got rid of the overpowering requirement of direct action in the crime of rape, which has been a form of intimidation on the battlefield since time immemorial.

The International Criminal Tribunal for Rwanda building in Kigali. Image from Wikimedia Commons, published under a CC BY-SA 3.0 license.
The building housing the International Criminal Tribunal for Rwanda in Kigali. Image from Wikimedia Commons, published under a CC BY-SA 3.0 license.

For purists in particular, it is still hard to reconcile the presence of mens rea in the absence of direct and personal actus reus. This line of argument sees rape as a genocidal offence only when committed in person. Prosecutor v. Akayesu elevated the discussion. At a very basic level, it attributed the multiple acts of sexual violence (including rape), carried out in times of armed conflict under the orders or with the knowledge of a commander, to the commander.

Genocide, defined under Article 2 of the Convention on the Prevention and Punishment of the Crime of Genocide is one of the crimes under international law. The subject area of heinous crimes committed during and in the course of armed conflict developed into a substantial body of jurisprudence in its own right after the Second World War. The emergence of the Geneva Conventions brought about world-wide awareness of the atrocities that human beings are known to inflict on each other in times of war. International criminal law now consists of the conventions and rules of armed conflict — both international and non-international — and the rules that govern the conduct of hostilities.

After it was first coined in 1944, the term “genocide” came to be used with terrifying frequency. It refers to various acts carried out with the intent of exterminating an entire population, based among other things, on identities associated with race, religion, ethnicity, language, and nationality.

During the Rwandan genocide, Jean-Paul Akayesu, a Rwandan born in 1953, was the mayor of the commune of Taba. As a Hutu politician of the Democratic Republican Movement, his was a story of extreme forms of hatred and ethnic violence. In October 1995, Mr. Akayesu was arrested and extradited from Zambia, to stand trial for fifteen counts of various acts of genocide, crimes against humanity, and other violations of the Geneva Convention, including rape under the theory of command responsibility. Acts of rape, it was argued, could be read into the words “causing serious bodily or mental harm to members of the group” in Article 2 (b).

The International Criminal Tribunal for Rwanda defined the act of rape in the following decisive and clear terms.

“598. The Chamber defines rape as a physical invasion of a sexual nature, committed on a person under circumstances which are coercive. Sexual violence which includes rape, is considered to be any act of a sexual nature which is committed on a person under circumstances which are coercive. This act must be committed:

(a) as part of a wide spread or systematic attack;

(b) on a civilian population;

(c) on certained catalogued discriminatory grounds, namely: national, ethnic, political, racial, or religious grounds.

This was a milestone in international criminal jurisprudence because for the first time, it was openly acknowledged that rape is a form of intimidation and coercion. For hundreds of thousands of survivors of rape and other sexual crimes from those genocidal one hundred days in Rwanda, the statement signaled the beginning of the painful journey to recovery.

In the context of armed conflict or a situation of extreme turmoil, the International Criminal Tribunal for Rwanda provided context to the act of rape as an offence of genocide as follows.

A painting from the Széchényi National Library in Budapest depicting the Mongols (on the left, with captured women) in Hungary. The Hungarians, with one saved woman, are on the right.
A painting from the Széchényi National Library in Budapest depicting the Mongols (on the left, with captured women) in Hungary. The Hungarians, with one saved woman, are on the right.

Like torture, rape is used for such purposes as intimidation, degradation, humiliation, discrimination, punishment, control or destruction of a person. Like torture, rape is a violation of personal dignity, and rape in fact constitutes torture when inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity.”

In the context of a Government official such as Mr. Akayesu, this exposition of the law contained potentially massive implications. For as long as the jurisprudence of sexual violence has existed, it has been an uphill struggle for the victim to prove complicity or instigation on the part of a perpetrator when the perpetrator has had no personal, direct, or immediate involvement in the actual act of rape.

On September 2, 1998, the Tribunal found him guilty for nine of the fifteen counts and sentenced him to life imprisonment for each of the nine offences. The sentences run concurrently as he serves his time in Mali.

(Suhasini Rao-Kashyap is part of the faculty on

Human Rights Supreme Court of India

Conciliation of the coerced!

Today would have been as good a day as any to hear the verdict of the Allahabad High Court in the Ayodhya title suit, writes Shadan Farasat.

Can two parties, who have been unable to come to a settlement for over 60 years, come to a settlement through an intervention of the Supreme Court? Two judges of the Supreme Court could not agree on an answer yesterday when they heard a Special Leave Petition to stay the impending decision of the Allahabad High Court on the title suit over the land where the Babri Masjid stood until 1992. The court eventually passed an order that abides with the Supreme Court’s tradition of issuing notice when two judges disagree on a grant of notice. The Court issued notice and granted a stay on delivery of judgment by the Allahabad High Court until September 28, 2010, when the matter is listed next before the Supreme Court. The Attorney General of India has been requested to be present in the Court for the next hearing.

Rear view of the Babri mosque before it was destroyed in 1992. Photograph by Shaid Khan.
Rear view of the Babri mosque before it was destroyed in 1992. Photograph by Shaid Khan.

But first, some background information. The Babri Masjid, as it was called, was built by Mir Baqi in Ayodhya in 1528 on the orders of Emperor Babur. It stood there as such until December 6, 1992 when it was demolished. On January 7, 1993 the President of India issued the Acquisition of Certain Area at Ayodhya Ordinance through which 67.703 acres of the Ram Janambhoomi-Babri Masjid Complex, as it came to be called by then, was acquired by the Central Government. Existing litigation in respect of this area abated. However, the President of India, under a reference under Article 143 of the Constitution, sought the opinion of the Supreme Court on whether such action on behalf of the government would be constitutional. In Ismail Faruqui v. Union of India, AIR 1995 SC 605, a five-judge bench of the Supreme Court held that this action of the Central Government was unconstitutional to the extent it abated all pending legal disputes before courts and referred the matter to the Allahabad High Court for decision on the multiple title suits, some of which had been pending since 1949. The Supreme Court has now stayed this judgment of the Allahabad High Court until September 28, 2010.

The odds against the petitioner before the Supreme Court were indeed high. A similar request had been made before the Allahabad High Court last week, and the majority had rejected it, with costs! If the High Court does not give the decision by October 1, one of the judges, Justice D.V. Sharma, will retire and the matter will have to be heard in its entirety once again by a reconstituted bench. The new decision will take a few more years. The Allahabad High Court had already tried mediation and conciliation, but failed. The petitioner, who is one of the twenty-seven parties in the suit, also had its bona fides in question, because it had failed to actively participate in the proceedings before the High Court. Finally and most importantly, none of the other parties to the suit were willing to consider a settlement at this belated stage and political settlement by various religious leaders and as many as three former prime ministers had also failed.

So what purpose did one of the judges of the Supreme Court see in coercing the parties into another (potentially) fruitless mediation process? The only answer is the resolution – or postponement – of possible law and order problems on the delivery of the judgment, if the judgment is seen as favouring one community over the other. However, unlike in 1992, the Central Government has already taken adequate measures, and all political parties and religious groups have advised restraint and promised to abide solely by the legal process. The mood of the country is also very different from 1992. So today would have been as good a day as any other to pass this judgment. While the Allahabad High Court decision would not have resolved all the disputes in respect of the issue, particularly relating to the emotions that may be attached to it, it would have been a step in that direction. By staying the decision of the Allahabad High Court, the Supreme Court may inadvertently be providing fodder to those who want to milk the issue politically in the future. While the Supreme Court does some more thinking until September 28, the country awaits anxiously.


Human Rights Lounge Uncategorized

Drawing a line – Why I lost my enthusiasm for Draw Mohammed Day

I didn’t quite know what to make of Draw Muhammed Day on May 20.

True to South Park canon, the source of the problem is a Canadian. Fox News had published her name as the originator of the idea that went viral, even though she has long backed off. The issue dates back to Viacom’s censorship of the 201st episode of South Park. The bi-centennial anniversary was a celebration of South Park’s major characters and plotlines. Yes, even the Super Best Friends who were resurrected to show Buddha snorting cocaine and Jesus using porn. Ironically, Viacom bleeped the show extensively and in particular, Kyle’s teaching point at the end. Allegedly, what Kyle had learnt that day concerned not cowing down to absurd terror. The Canadian was objecting to such censorship.

In the beginning, the banning of Facebook was just one more thing to roll your eyes at Pakistan for. Yet, trawling the pictures people had posted, I saw mainly pure Islamophobia on display. Many drawings depicted the Prophet as a pig. Others invest him with devilish aspects. A common theme was him abusing little girls as a paedophile. Soiling himself was almost a leitmotif. Then there were some that were so ridiculous in their attempt to be offensive that they had genuine artistic merit. Case in point- the I am Muhammed and I have a bread roll in my bum cartoon.

This is not to say that all of the cartoons were designed to be offensive. My favourite had to be the simple stick figure sniffing a flower. Someone had also drawn a rather good portrait of the boxer Cassius Clay. There was even a montage of the long tradition of aesthetic paintings of the Prophet in Shia culture.

When it comes to depicting the Prophet, the issue is more complex than a freedom of expressionversus religious sensitivity debate. This point is best expressed by Karseten Kjar’s documentary Bloody Cartoons. Made as part of a series for BBC entitled Why Democracy?, it peels back layers of the carefully planned protests against Denmark to find it is not much different from the Rushdie fatwa issue. The Satanic Verses controversy is seen by many as a classic wag-the-dog exercise by the Ayatollah. He needed to shore up political support for the war against Iraq, which wasn’t going well. The scene that seals the deal in the documentary is when the filmmaker buys the last poster of Muhammed (depicted in a Disneyish hero iconography) in an Iranian Islamic super-store. The Iranians were going to stop publishing the hero poster to show solidarity with their Sunni Arab brothers (whose guts they ordinarily hate and fought above-mentioned war with).

In many ways this represents how much freedom of expression has shrunk due to that old villain: globalisation. When Super Best Friends was aired in 2001, no one took any notice of it. The Danish cartoons controversy has changed all that. Viacom no longer airs the episode that ran unimpeded for nearly ten years.

The Facebook, er, face-off between offended Muslims and those who are blatantly enjoying the anonymity of the Internet to rile them is very different from traditional conflict. It is not one artist against some fundamentalists. It is thousands of common people versus each other.

I quickly lost any enthusiasm for what had initially seemed a genuine grass-roots reprisal against fear, through social networking. There is a line between challenging the oppression of blasphemy and expressing hate against a people.

Somewhere, cartoons had stopped being funny.

Shubhodeep Shome is a writer and lawyer.