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Litigation Lounge

[Video] Mathura: The rape that changed India

Not many remember that 40 years before the horrific events of December 16, 2012, there was another incident, where a girl even younger than Jyoti Singh was raped.

Her name was Mathura and she was raped by police constables.

She survived and appealed to our courts but did not get justice.

Mathura’s journey through the criminal justice system however, gave rise to a women’s movement that spanned the whole of India and led in 1983, to groundbreaking change in the law on sexual violence against women.

It also inspired an extraordinary act of courage from four law professors who dared to raise their voices against the judiciary and pursue legal reform.

Join us to learn from Padma Shri Professor Upendra Baxi, Dean of the Delhi University Faculty of Law Professor Ved Kumari, and Senior Advocate Rebecca John, the story of Mathura’s rape, its transformation of our vocabulary on sexual violence, the changes it brought about in the law, and the inspiring personalities who made it happen.

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Litigation Lounge

Nanavati v. Maharashtra, the sensational true case behind Rustom (2016)

Rustom, released today, is Akshay Kumar’s latest movie. You probably know that it is based on a true story, but do you know the details of the sensational trial on which it is based? The real story is far more explosive and dramatic than any fictional film could possibly be.

K.M. Nanavati v. State of Maharashtra had all the elements of a thrilling potboiler but it involved real people and events. The cast of the actual case became more famous than movie stars – not just K.M. Nanavati, Sylvia Nanavati, and Prem Ahuja, who were involved in the actual incidents, but even those involved in the subsequent trials, including Y.V Chandrachud, Karl Khandalavala, and Ram Jethmalani. Moreover, the case became forever etched in the legal history of India as the last jury trial held in the country.

Join us as we delve into the events, personalities, and the unbelievable twists and turns of this true story that probably became the first instance of a trial by media in India. With the help of Senior Advocate Sanjay Hegde and legal historian Kalyani Ramnath, we explore how this case has affected the way we deal with circumstantial evidence, what “grave and sudden provocation” means, the Governor’s power to grant pardons, and much more. We also ask the big question: Should the jury trial be brought back?

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Lounge

Awara (1951) – The Courtroom as Ivory Tower

SayakDasgupta_InCamera

(In Camera is Sayak Dasgupta’s series of essays that examine the depictions of trials in cinema. He will look at how filmmakers have chosen to use trials and the criminal justice processes and what those depictions tell us about their view of cinema and the societies they made those films for.)

In Raj Kapoor’s directorial debut, Aag (1948), he played Kewal, a boy whose father is a successful lawyer and wants him to become one too. Kewal however, is not interested in the law; he wants to start his own theatre company. When he fails his law exams, he goes to his father and tells him as much. His father responds with an ultimatum: if he wishes to keep living in his father’s house, Kewal must forget about theatre. Kewal chooses to leave home. Aag, to use a rather obvious pun, didn’t quite set the box office on fire. It got a lukewarm response from audiences and quickly faded away. Unlike Kewal, something about the law must have appealed to the actor who played him, because three years later, in his third directorial venture, Raj Kapoor once again told the story of a son whose father is a lawyer. But this time, the story was entirely different.

The context

Where Aag fizzled out, Awara exploded like a ton of dynamite not just in India, but all over the world. It became massively popular in South Asia, the Middle East, Turkey, the Soviet Union and most of eastern Europe. Search for “Awara Hoon” on YouTube and you will come across an array of endearing videos of Russian, Uzbek, Turkish, and Chinese people singing the song, in Hindi or translated in their native languages. It is said that Chairman Mao himself counted Awara among his favourite movies.

Awara was released four years after India gained its independence, and forty years before the liberalisation of its economy. The ideals of Nehruvian socialism were still very much an important part of the zeitgeist in India and would remain so for many decades to come. And at its core, the film is about class struggle. It isn’t surprising that the film appealed particularly to Indian, Soviet, and Chinese sensibilities at the time.

At that crucial moment in India’s history, Raj Kapoor’s films would go a long way in defining how commercially successful melodramas with a social message would be made for years to come. In this film, he chose to frame the narrative within a trial.

SPOILERS AHEAD

The story

Awara_courtroomIn fact, the film begins in a courtroom. A young man called Raj (Raj Kapoor) is accused of attempting to murder the widely respected Judge Raghunath (Prithviraj Kapoor). In true Shakespearean fashion, Raj’s defence attorney is his lover, Rita (Nargis), who questions Raghunath about his long-estranged wife, leading us into a flashback.

We discover that when Raghunath was a young and wealthy lawyer, his wife, Leela (Leela Chitnis), was kidnapped by the notorious thug, Jagga (K.N. Singh). Years ago, Raghunath had apparently managed to get him convicted for a rape that he had not committed, purely on the basis of the fact that his father and grandfather were criminals. You see, Raghunath holds the firm but bewildering belief that crime is a genetically transmitted disease. In other words, criminals are born to criminals, and no child of an honest person can ever get into a life of crime. (Clearly he hasn’t given much thought to what happens if an honest person and a criminal have a child. Perhaps an Indian version of Two-Face? Seriously, who wouldn’t want to watch that movie?)

Here, we get our first glimpse of the theme of the film. Whether Raghunath knows it or not, his beliefs are clearly not based on biology, but on class factors. In his mind, respectable people with respectable jobs and families cannot produce criminals. Criminals come from the other side of society.

Ironically, in Jagga’s case it was the criminal justice system that turned him into a criminal, and his sole aim in life seems to be to have his revenge. So when he finds out that Leela is pregnant, he knows exactly what to do. He uses Raghunath’s own flawed belief system to destroy his life. Jagga sends Leela back to Raghunath knowing that there would always be uncertainty about who the unborn child’s biological father is. And sure enough, Raghunath, like a modern Ram, casts his pregnant wife out of his home.

Leela gives birth to a boy and names him Raj. Despite living in abject poverty, she dreams of her son becoming a lawyer and a judge some day, just like his father. She scrapes together enough money to get him a decent education in a good school. Young Raj (Shashi Kapoor) is an anomaly in his class, which is full of children from far more affluent families. His only friend is Rita (Baby Zubeida), the daughter of a rich lawyer. Raj is a conscientious young boy who is eager to do honest work to help his mother make ends meet, but he finds it difficult to balance work and school. His life completely falls apart when he reaches class late one day and is expelled, and also informed that his best friend Rita has left town. At home, his mother is severely ill and he can’t afford to buy food or medicine. The straits have never been direr. Enter Jagga, who is still not done with his ridiculously elaborate revenge plot. On a quest to prove that even respectable people can give birth to criminals, he takes Raj under his wing and leads him into a life of crime. By the time he is an adult, Raj has become a career criminal and a frequent jail inmate.

The conflict

Raj Kapoor ensures that he keeps our protagonist as everyman as possible. In creating Raj, he borrowed heavily from Charlie Chaplin’s loveable tramp character to ensure our sympathies lie with him. We empathise with Raj’s ambitions of being upwardly mobile. In a revealing reflection of the times, Raj tells Jagga that he met a “political” the last time he was in jail and learnt to speak English from him. Despite working for the ruthless Jagga, Raj never seems to commit any particularly heinous or violent crimes (we mostly seem him commit petty theft). However, he is very acutely aware of his place in society, and when we do see the class struggle embodied in him erupting in acts of violence, it is particularly jarring. An especially disturbing example comes after Raj is reunited with Rita after many years and they fall in love. When Rita jokingly calls him “junglee” (uncouth, uncivilised, ill-mannered, ill-bred), he physically assaults her, twisting her arm, choking her, slapping her. Rita, despite being the one who has been assaulted, begs his forgiveness, even encouraging him to hit her some more. This bizarre scene only makes some semblance of sense if one thinks of Rita as a representation of the upper class, filled with its own version of white guilt, seeking forgiveness from the lower classes – an extraordinarily tone-deaf spectacle of self-flagellation from the affluent makers of the film.

After her father passed away, Rita was adopted by none other than Raghunath, who is now a respected judge, and she is now training to be a lawyer. Having fallen in love with her, Raj tries to leave his life of crime behind and start afresh. He gives up his swank apartment and becomes a factory-worker. However, his employer find out that he used to be a criminal and fires him. Before leaving, Raj asks him an important question: If he didn’t want to employ former criminals, did he want them to go back to a life of crime in order to survive? It is very rare for a mainstream Bollywood film to ask tough questions about the rehabilitation of criminals. This scene serves the dual purpose of exposing our society’s attitudes towards criminals, while also underlining the ability of the powerful upper class to disenfranchise and take away the means of survival of those who have less power.

Judge Raghunath is the very embodiment of this toxic mix of prejudice and power. When Rita tells him of her love for Raj, he insists on meeting him, and when they meet, he humiliates and belittles Raj. When Raj gets back home, he finds Jagga trying to kill his mother. In trying to save her and himself, Raj kills Jagga. In a stunning (and rather convenient) twist of fate his case is brought up before Judge Raghunath. Even before he has heard arguments on the matter, Raghunath has made up his mind to find Raj guilty – a clear demonstration of the unholy marriage of prejudice and power. But Rita takes it upon herself to get Raj acquitted. She asks Leela to testify to her son’s innocence, but when she reaches the court, Leela sees Raghunath from afar and recognises him. As she tries to walk to him she is run over by Raghunath’s car. When Raj hears of this, he is overcome with rage thinking that the judge has attempted to murder his mother. He escapes from prison and goes to Raghunath’s house to kill him. However, he is unable to go through with it and is arrested. And this brings us back to where the film began – the trial of Raj for the attempted murder of Raghunath.

The message

In Damini, Govind (Sunny Deol) repeatedly asserts that the judicial system has become a pawn in the hands of the rich and powerful. In Awara, this is demonstrated. Raghunath, referred to throughout the film as “Judge Sahab”, comes from a wealthy family and benefits from all the privileges that come with it. As a judge he gains power over people’s fates, but he is human, and like many humans, he harbours irrational prejudices that warp his sense of justice. He sits in judgment from atop an ivory tower completely ignorant of the harsh realities of living in poverty and squalor. The big question Awara asks is can you truly judge someone of being guilty of a crime if you can’t understand the circumstances that made her/him a criminal?

AwaraNargis2The film makes repeated references to the gulf between the law and the heart. Towards the end of the film, Rita asks Raghunath: “Kya ab bhi aapka dil use beta maanne ke liye taiyar nahin? (Is your heart still not ready to accept the fact that that this is your son?)”. The presiding judge says, “Rita Devi, kanoon dil ko nahin manta. (Rita Devi, the law does not recognise the heart.)”, to which Rita replies, “Janaab-e-wala, dil bhi kisi kanoon ko nahin manta. (Your honour, the heart also does not recognise any law.)” The film seems to say that the courts can be heartless and cold because the people who are given the job of dispensing justice often come from a privileged section of society that divorces them from the real world, rendering them incapable of having genuine empathy for those who are not like them.

However, does this mean that Awara is purely a polemical exercise in denouncing our criminal justice system? Not really, because, in the end, Raj’s trial has possibly the most just outcome. He is found guilty of attempting to murder Raghunath, but given the singular circumstances and the history of the people involved, the court sentences him to only three years in prison. Even Raj agrees that this is fair, that he must atone for what he has done. While many Hindi films would have acquitted Raj entirely, Awara takes an uncommonly fair and even-handed approach to the case. In the end, the court climbs down from its ivory tower and justice is done.

(Sayak Dasgupta wanders around myLaw looking for things to do.)

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Litigation

Death and the special legislation – Why the CrPC’s death penalty safeguards should also be available when death is awarded under other laws

ProceduralLawOfTheDeathPenalty_RahulRamanApart from the Indian Penal Code, 1860, there are 23 statutes that prescribe the death penalty as a form of punishment in India. The Anti-Hijacking Act, 2016 is the most recent addition to this list.

The movement towards making the death penalty an exceptional punishment began in 1955, after the repeal of Section 367(5) of the Code of Criminal Procedure, 1898, which required courts to record reasons when deciding not to impose the death penalty. Several important substantive and procedural safeguards were then introduced by the legislature and the judiciary to ensure the fair administration of the death penalty.

When safeguards in the CrPC are not available

The Code of Criminal Procedure, 1973 (“CrPC) requires the court in Section 354(3) to record “special reasons” while awarding the death penalty. It also requires the obligatory confirmation of the death sentence by the High Court. There are however, quasi-judicial bodies with the power to award the death penalty, which are bound only by the procedures prescribed in their parent statutes and not the CrPC. Some of these statutes include the Air Force Act, 1950 (“Air Force Act”), the Assam Rifles Act, 2006, the Defence of India Act, 1971, and the Karnataka Control of Organised Crime Act, 1999. These statutes remain bound by the principles of natural justice (S.N. Mukherjee v. Union of India, 1990 AIR 1984).

An example of a quasi-judicial proceeding that does not follow the procedures contained in the CrPC is that of “court martial”, provided for in the Army Act, 1950, the Air Force Act, and the Navy Act, 1957. The rules of procedure to be followed during a court martial proceeding are prescribed in the respective statutes itself. These procedures do not provide for safeguards similar to those in the CrPC. For example, there is no statutory onus on the court to provide “special reasons” in a court martial proceeding.

In S.N. Mukherjee v. Union of India, among the other issues before a constitution bench of the Supreme Court, inter-alia, were whether reasons are required to be recorded at the stage of (i) recording of finding and sentence by the court-martial; (ii) confirmation of the findings and sentence of the court-martial; and (iii) consideration of post-confirmation petition.

With respect to the first issue, the Court noted that the court martial is not required to record reasons at the stage of recording of findings and sentence. Similar conclusions were reached regarding the second and third issues as well. While these observations were made in relation to the provisions of the Army Act, these observations would hold true for the other two statutes as well since the procedures for court martial are similar.

Relying on the SK Mukherjeee dicta, the Delhi High Court in Balwinder Singh v. Union of India, 64(1996) DLT 385, decided not to interfere with the findings of court martial on the ground of absence of any ‘special reasons’ but commuted the death sentence to imprisonment for life on other grounds.

The petitioner was charged under Section 69 of the Army Act for committing murder. The general court martial found the petitioner guilty and sentenced him to death. This was further confirmed by the Central Government. The petitioner had also exhausted the recourse available to him under Section 164(2) of the Act. Section 164(1) and (2) provide for a remedy against, inter alia, the sentence of a court martial. The aggrieved party can present a petition before the confirming authority, and after that, to the Central Government or the Chief of Army Staff.

The petitioner, therefore, filed a writ petition under Article 226 of the Constitution challenging the above orders, questioning among other things, the absence of “special reasons” in the order of the general court martial, as stipulated under Section 354(3) of the CrPC. The petitioner also raised an argument in the alternative that the requirement under Section 354(3) should be read as a part of natural justice requirements of Article 21 of the Constitution.

The court reiterated the position laid down in SN Mukherjee, and said that the general court martial did not commit any error by not recording any ‘special reasons’ in the case. Similarly, the Court interpreted Section 162 of the Army Act to excuse even the confirming authority from providing reasons while confirming the sentence of death. Regardless, the court observed that if there are any shortcomings in the findings of general court martial or the confirming authority, they could be challenged under Article 32 or Article 226 of the Constitution. The Court failed to make any observation on the argument regarding Article 21 of the Constitution; that giving “special reasons” is essential in a case where death sentence is to be awarded irrespective of the nature of the court or tribunal.

Similarly, Section 64 of the Border Security Force Act, 1968 provides for the establishment of special courts. The General Security Force Court is empowered to pass a sentence of death under Section 72. Chapter VII (Sections 82 to 106), which lays down the procedure for the courts under this Act, does not contain any special procedure (as contained in CrPC) with respect to death sentence. The only additional requirement for passing a death sentence is that it should be passed with a concurrence of at least two-third members of the court. Other decisions of the Court can be passed by an absolute majority. This kind of voting requirement is present in other statutes that stipulate for trial by court martial as well.

Most of the other non-IPC legislations that stipulate death penalty among its punishments follow the special procedures mentioned in the CrPC with respect to the death penalty. For example, under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, there is a provision in Section 14 for establishing a special court for trying of offences committed under the Act. However, this court is also bound by the procedures prescribed in the CrPC.

The incorporation of special provisions with respect to the death penalty in the CrPC signifies the legislature’s intent to include additional safeguards that aim at ensuring maximum protection to a person sentenced to death. Considering the general legislative and judicial caution against the death penalty, it is important that a larger bench of the Supreme Court revisit the findings in S.N. Mukherjee. The requirements of giving ‘special reasons’ and obligatory confirmation by the High Court should be made imperative, regardless of the statute under which a person has been sentenced to death.

(Rahul Raman is a Project Associate at the Centre on the Death Penalty, National Law University, Delhi.)

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Litigation

Open court hearings in review petitions after Mohd. Arif (2014)

SohamGoswami_DeathPenaltyProcedureThe Supreme Court of India has qualified the scope and extent of the right to life enshrined in Article 21, through a series of judgments from A.K. Gopalan v. State of Madras, AIR 1950 SC 27 to Maneka Gandhi v. Union of India, AIR 1978 SC 597, ensuring that infringements upon life and personal liberty may only be made through “fair, just and reasonable procedure”.

So what of the procedure extinguishing life from a person who has been found guilty of capital offences? There is a comprehensive procedure under Indian law to ensure that a person sentenced to death may be afforded the maximum opportunities to present his side of the case so that he can hopefully be acquitted or his sentence commuted. A Court of Sessions, which is the competent court to record evidence and convict the accused, must cite its reasons in writing (Section 367 of the Code of Criminal Procedure, 1973) for awarding the death sentence and must then submit that decision to the state’s High Court for confirmation (Section 366). The sentence is considered valid only after confirmation and the convict may (if the High Court certifies the case under Article 134 of the Constitution) move the Supreme Court. The convict has a right of appeal if the High Court has either (a) overturned an acquittal or lesser conviction by the Court of Sessions and awarded the death sentence or (b) withdrawn proceedings before the Court of Sessions and conducted the same in the High Court.

The Supreme Court’s review jurisdiction

Under Article 137 of the Constitution, the Court may review cases decided by them. Order XL of the Supreme Court Rules, 1966 further require review to be done in chambers (that is, by judges, conferring amongst themselves without the assistance of counsel) and based on written pleadings made by counsel.

The Supreme Court in P.N. Eswara Iyer v. Registrar, Supreme Court of India, AIR 1980 SC 808, upheld the constitutional validity of Order XL, Rule 2 (requiring review in chambers), citing the heavy burden upon the Supreme Court to hear oral arguments in all cases within its jurisdiction.

The Supreme Court however, in Mohd. Arif v. Registrar, Supreme Court of India and Others, (2014) 9 SCC 737, dealt with the question of whether death sentence cases would form a class by themselves, meriting separate treatment.

The disagreement in Mohd. Arif

Writing for the majority, Justice Rohinton F. Nariman held that due to the nature of the death penalty, where:

1. the punishment is irreversible, and

2. due to lack of sentencing guidelines, it is left to various judges as to the quantum of sentence to be awarded (for instance, one judge might award the death sentence in a certain case, while another judge might sentence someone to life imprisonment for the same offence and same circumstances), sentencing was often arbitrary;

the highest standard of scrutiny was required in such cases.

Justice Rohinton F. Nariman interpreted Justice V.R. Krishna Iyer’s (the author in P.N. Eswara Iyer) ruling as allowing for such cases to be heard orally in open court. He quotes paragraph 29A of P.N. Eswara Iyer “…indeed, there is no judicial cry for extinguishment of oral argument altogether.”

However, Justice Chelameswar dissented, holding that the question of arbitrary sentencing did not arise as the same judges of the Supreme Court who passed the original judgment were required to sit on the review bench.

However, Mohd. Arif (the lead petitioner) was denied the opportunity to file a review petition himself. This was because he had already submitted a curative petition (the last option in the Supreme Court) and the Court held that to grant him a review petition now would infinitely delay the process. The review petition is filed and admittedor dismissed prior to the curative petition.

Eventually, a Constitution Bench of the Supreme Court on January 19, 2016 allowed Arif to re-open his review petition on the ground that he would be the only person not receiving the benefit of a review petition, which would be unfair to him; further, the dismissal of the curative petition should not preclude the petitioner from receiving the benefit of a review petition in open court, no matter how slim the chance of success may be.

As one can see upon perusal of the judgment in Mohd. Arif, the purpose was to ensure that, no matter how slim, people receiving the death sentence should be given as many opportunities as permissible under the law for evidence to be re-appreciated. However, the problem that is apparent from the dissent of Justice Chelameswar is that ordinarily, the same Bench hearing the original case on merits deals with the review petition (unless any of the judges retire). It is unlikely therefore, that they would change their opinion on whether the convict should receive the death penalty; thus, the purpose of the review petition is not realised.

The purpose of the review bench, as is evident from Order XL of the Supreme Court Rules, is to merely check whether there is an error apparent on the face of the record. The composition of the bench should therefore, not matter, as the matter for appraisal should not lead to different conclusions. At the same time, the same judges having already looked into the matter once, would ordinarily not be willing to sit and review the whole case again.
Mohd. Arif is however, a pathbreaking judgment given its implications for prisoners on death row—that at the penultimate stage of proceedings at the Supreme Court, they are entitled to an open court hearing and reappreciation of evidence in their case argued by their lawyer. It remains to be seen, however, the manner in which Supreme Court deals with these petitions.

 

(Soham Goswami, currently in the third year at ILS Law College, Pune, is an intern at the Centre on the Death Penalty. The views expressed in this article are his alone.)