March 24, 2016

Redefining, Reconsidering Juvenile Delinquency- Juvenile Justice (Care and Protection) Act 2015

By Ananya Mishra, 2nd Year Student at NUJS

“Child is father of man” – William Wordsworth. 

The word Juvenile comes from a word Juvenilis which means “of or belonging to youth”. Legally speaking a juvenile is a person who is not old enough to be held responsible for criminal acts. In layman’s language he is a minor or an immature person. This dictionary definition is the conventional concept with regard to children of tender age. It poses a question on increasing stastics of gruesome criminal acts committed by these juveniles whose juvenility is reflected in their acts.  They come as a shock and have imposed a question mark on the leniency and the special treatment given to them by various central legislations having in core their rehabilitation as aim.  Should age be allowed to be the mitigating factor for them? Figures on juvenile crimes by the National Crime Records Bureau (NCRB) reveal that from 2002 to 2012, there has been a 143 per cent increase in the number of rapes by juveniles. In the same period, figures of murders committed by minors went up by 87 per cent while there has been a whopping 500 per cent increase in the number of kidnappings of women and girls by minors. These acts of them establish them as capable to not only understand the gravity of their acts but also to commit them in cold blood and with sufficient mens rea. For that purpose Juvenile Justice (Care and Protection) Bill 2104 is an approach of drawing that line between being cared or to be held culpable. 

History of Juvenile Justice in India:

Prior to 1773, the penal systems including those for children were governed by prevailing customary laws. However a categorization of offenders on the terms of age is reflected in some aspects of penal laws of that era. The punishment for littering on the streets for children less than the age of 12 was less stringent than that ordained for an adult offender.  Post this period the advent of British led the foundation stone for ragged schools, i.e. schools for destitute children. The period of 1850-1919 witnessed a number of statutes coming up to horizon like the Indian Penal Code and the Criminal Procedure Code. Section 27 of the latter mandates that children be tried by special courts under Children Act 1960, for their treatment, training and rehabilitation. Section 82 of the former act excluded children aged less than 7 from any criminal culpability. Indian Government has come up with a number of legislations in the field of Juvenile Justice like the Children Act 1960, Juvenile Justice Act (Care and Protection) 2000, Juvenile Justice (care and Protection) Act 2006. Also the recently proposed Juvenile Justice (Care and Protection) Act, 2014 along with the United Nations Declaration of the rights of the Child in 1959, mandate the same. 

Juvenile Justice (Care and Protection) Act, 2014:

The Ministry of Women and Child Development had introduced the Juvenile Justice (Care and Protection of Children) Bill, 2014 in the Lok Sabha on 12th August, 2014. This has developed into an act after getting passed by Rajya Sabha This act sought to make more robust, effective and responsive the legislative framework for children in need of care and protection as well as children in conflict with law. 

The Act replaces and amends the Juvenile Justice (Care and Protection of Children) Act, 2000.  It addresses the methods of treating the children standing in conflict with law and also the need to attend with care and protection. It permits juveniles between the ages of 16-18 years to be tried as adults for heinous offences.  Further, any 16-18 year old, who commits a serious offence, may be tried as an adult only if he is apprehended after the age of 21 years. Alongside the establishment of Juvenile Justice Boards (JJB) and Child Welfare Committees (CWC) in each district has been contemplated.  The JJB will conduct a preliminary inquiry to determine whether a juvenile offender is to be sent for rehabilitation or is to be tried as an adult.  The CWC will determine institutional care for children in need of care and protection. Furthermore, procedures regarding adoption and penalties for certain offences like selling narcotic substances to children or abduction of children have found place in the new Bill. A single person is now eligible to adopt a child, however, a single male is not allowed to adopt a girl child. The Bill also provides for ‘aftercare’ of persons between 18-21 years after they leave the institutional care, with a view to help them enter mainstream society.

It proposes that in case of commission of a heinous crime by a person who falls in in the age group of 16-18 years will be examined by the Juvenile Justice Board to assess if the crime was committed as a ‘child’ or as an ‘adult’. Psychologists and experts will be responsible for the contemplated assessment. They will be members of the board and hence it will ensure that the rights of the juvenile are duly protected if he has committed the crime as a child. The subsequent trial of the delinquent would largely depend upon the aforementioned assessment. A “heinous” offence is defined in the Bill as an offence for which the minimum punishment is imprisonment for seven years or more. The Juvenile Justice Board will be tasked with conducting preliminary inquiry into the nature of the offence and other circumstances. Such inquiry is required to be completed within a month.

The Ministry of Women and Child Development states that this two stage process is a more sensitive approach towards juveniles in need of it. At the same time it proves as a guard against crimes perpetrated on women. 

Criticisms of the Bill :

There are differing views on whether juveniles should be tried as adults. A section argues purporting inefficiency of the bill as a deterrent while another stands in opposition to retributive form of punishment suggested for children. 

Moreover  the Juvenile Justice system in India is centered on the constitutional mandate embodied in the language of Articles 15 (3), 39 (e), 45 and 47 of the Constitution of India.   The difference in procedures does not qualify as a reasonable classification to ensure equality among equals.

The Juvenile Justice jurisprudence in India has also stemmed from the nation being the signatory of various international covenants like United Nations Convention on the Rights of the Child and United Nations standard Minimum rules for Administration of Juvenile Justice. The UN Convention on the Rights of the Child mandates all signatory countries to treat every child under the age of 18 years as equal.  The provision of trying a juvenile as an adult stands in contravention of the Convention.

The word heinous offences could be a potential source of ambiguity. They are defined to be the offences having imprisonment for 7 years. It leads to the amalgamation of various kinds of offences in same category on the basis of penalties imposed for their violation. 

Under the act, Juveniles between 16 and 18 years of age, have to go through a preliminary inquiry to ascertain their guilt. If found guilty, the procedure recommends them to be sent to children’s court will be sent to a children’s court that can pronounce the child guilty. Such juveniles can be detained in a ‘place of safety’ until they reach the age of 21. If no signs of reformation are seen till the age of 21 they can be sent back to jails with adults. However at present, most states do not have the ‘place of safety’, also known as ‘borstals’. 

States such as Rajasthan, Odisha, Chhattisgarh and Jharkhand, there is a lack of such institutions and hence the juveniles meant to be sent to lace of safety are sent to regular jails. “In Delhi, the ‘place of safety’ was situated within the Tihar jail premises until the High Court suo moto took cognizance of the matter.

Also Article 3(1) of the act says that the particular act is based on the presumption of innocence of the juvenile to any mala fide or corrupt intent. However Article 15 contemplates a preliminary inquiry to determine his mental and physical capacity and the surrounding circumstances at the time of commission of offence. This provision is apparently presuming his guilt and the inquiry is only an attempt to look into the accessory factors of the situation. Thus these two provisions stand in contradiction to each other. 

Conclusion :

After the pronged debate of constitutionality, morality and utility of the said bill, it is pertinent to analyze this draft in the light of prevailing circumstances. Floodgates of cases of juvenile delinquency of various forms open, when the society is threatened by such offenders.   Thus a law capable of having a heavy hand, deterrent effect is needed as a solution to the present scenario The law should be capable to address the changing conditions of society.   The constitutional questions related to right to equality and right to life, posed on the said bill are not denied. Still Juvenile Justice (care and Protection) Bill, 2014, passed by both Rajya Sabha and Lok Sabha by now is worth given a place in legal system of the nation. This is not a mere bill however it supports and proposes a vital step towards the reformation of society. The effort in the direction of reconciling  two entirely contradictory schools of reformative and retributive form of justice in a dilemma struck society, should be welcomed.

January 28, 2016

Analysis of liability of celebrities for product endorsements

By Ayushi Singhal, 3rd Year Student at National University of Juridical Sciences

Do celebrities owe us a duty for the claims they make in advertisements?

The favorite midnight snack of many, Nestlé’s Maggi has been banned by the Food Safety and Standards Authority of India (FSSAI) because of problems associated with the quality and labeling of the product. The notices issued to various celebrities who had been endorsing Maggi noodles and the orders for lodging FIR against them have reignited an extremely important legal debate concerning the liability of celebrities for the product endorsements they make. This article discusses the duty of celebrities for their endorsements, relevant laws in India and the precedents in some other countries. 

Making a case for celebrity endorsement

There are many questions which crop up when we seek to make celebrities liable for their claims in advertisements. Such questions include; whether people actually believe in the claims made by the celebrities, and whether  the products are bought because of endorsements or are they bought first and endorsements only reassure the consumer. There is no straitjacket formula to these questions. Although, it certainly depends on factors like, “the context, the product or service endorsed, the expertise of the celebrity in that area, the mass appeal of the celebrity and the reliance of individual consumer”. 

This brings us to a more nuanced argument. Does the fact that celebrities have a right to publicity which they harness economically while advertising, impose a duty on them to not use this right in a manner detrimental to the general public? Or since the celebrities have a right to publicity, the audience has a reciprocal right of reliance? After all, unlike the movies, the fact that the plot and characters are fictional is never reflected or shown in an advertisement. In fact the representations made by the likes of Ms. Padukone are a “cause in fact” of the pecuniary loss to the consumers to the extent of the difference between an effective gym equipment for losing one’s weight and the Kellogg’s Special K. Similar arguments can be made for every misleading advertisement. 

Some make a superficial distinction between the celebrities giving personal testimonies versus the celebrity playing a role in the advertisement, for instance Ms. Dixit is playing the role of a mother in the Maggi advertisement. It is argued that a celebrity should be liable only when (s)he is making a personal testimony and not when (s)he is playing a role of another. However, it is extremely difficult to accept this difference. Audience generally does not think this way when relying upon the claims. Further, as stated above, unlike films, the fictional and impersonalised role is not emphasised in advertisements, thus making no space for this argument. 

Another argument put forth by the people disagreeing with making celebrities liable is based on the fact that celebrities do not have an option through which they can identify the truthfulness of the statement which they are made to say in the testimonial by the ad-gurus. However a simple counter to this is requiring celebrities to test, try and experiment the product to find out. While this may sound a little far-fetched in the case of Maggi noodles, checking the amount of lead is the duty of the FSSAI and not Ms. Dixit’s and every single pack can surely not be checked by the celebrities, yet celebrities can certainly be made liable for making sweeping claims like a person drinking Drink X can grow twice as taller as (s)he would grow drinking Drink Y (the ad for the health drink Complan).

What are our neighbors and partners in trade doing about it?

In USA, the Federal Trade Commission Guidelines prohibit deceptive and misleading endorsements by celebrities and make celebrities liable for the same. The endorsers are required to reflect their “honest opinions, findings, beliefs, or experience” in the advertisements. In fact, the advertisers can continue to use the endorsements only as long as the advertiser has a good reason to believe that the endorser continues to remain a bona fide user of the endorsed product.  

In Europe, the celebrities follow a self-imposed code whereby they refrain from endorsing products harmful to the health of the general public like alcohol, medicines etc.

Korea on the other hand has an Advertising Self-regulation Institution which issues guidelines with respect to endorsements and reviews the endorsed advertisements making false advertisements a rarity.

Among our neighbors, China makes the endorsers jointly liable with the service provider for the harm caused by the product.

Pakistan also has laws forbidding false and misleading advertisements, however it is uncertain whether these laws will also include liability of celebrities for their endorsements.

The Malaysian Code of Advertising Practice requires that the endorsements or testimonials contained in advertisements should be based on genuine experience of the endorser over a period of time. Malaysia also has special guidelines for “[p]ersons, characters or group who have achieved particular celebrity status with children”. These celebrities are forbidden from promoting food or drinks in a manner that may undermine the need for a healthy diet however the endorsers are not liable for the same since sanctions are in the form of “withholding of advertising space from advertisers and the withdrawal of trading privileges from advertisers/ advertising agencies”.

Singapore has similar laws  relating to false advertisements and is also cogitating to put into place specialised guidelines pertaining to children.

In Japan on the other hand celebrities participating in false endorsements are made to apologise publicly. This harms the reputation of the endorser decreasing the employment opportunities of these people, forcing celebrities to refrain from making claims with regard to the quality or effectiveness of a product.

What is the law in India?

Section 24 of the Food Safety and Standards Act, 2006 puts restrictions on misleading advertisements. It states, that “no person” shall be allowed to engage in misleading representation concerning the “standard, quality, quantity or grade-composition” and “need for, or the usefulness” of a food product. (S)he should not make any statement which “gives to the public any guarantee of the efficacy [of the product] that is not based on an adequate or scientific justification thereof.” Section 53 of the Act describes the penalty for such false advertisements which can extend to ten lakh rupees. This penalty applies to “any person” and hence should ideally include the celebrities; however there is no case law to support this proposition. 

The Central Consumer Protection Council (CCPC) has also decided to issue specific guidelines to this effect after the Madhya Pradesh High Court directed to set up an advertisement monitoring panel as per the Vibha Bhargava Commission (gave recommendations on monitoring of ads). These guidelines if enforced will allow consumers to claim compensation from celebrities for misleading claims made regarding a product, recklessly or with knowledge that the claim is false. 

January 8, 2016

Marital Rape within Child Marriage: A Discriminatory Provision

By Bhumika Maheshwari, 3rd Year Student at National University of Juridical Sciences


Indian Penal Code, 1860 (‘IPC”) under Section 375 provides an exception that ‘Sexual intercourse by a husband with his wife, who is not being under the age of 15 years, is not a rape’. On the other hand, Criminal Law (Amendment) Act, 2013 changed the minimum age of consent for sexual intercourse to 18 years against the earlier provision of 16 years. Consequently, there arises an anomaly as to the difference in position of a married Girl and an unmarried girl under the same law. An act of sexual intercourse with a married girl by her husband is not a rape if she ages above 15, contrary to the position of an unmarried girl, where, any kind of sexual intercourse, with or without consent, will amount to rape against her if she is below 18 years of age. Hence, it is quite clear that IPC distinguishes between the positions of the minor girl based on their marital status.

Marital Rape Exception: Contradictory to Other Statutes

Larger State Policy, since, the year 2000 has recognized child as ‘any person under the age of 18 years’, however, the above exception under IPC distinguishes the age of a child from all other statutory provisions. Statutes like Prevention of Child Marriage Act 2006 (‘PCM’), Protection of Children from Sexual Offences Act 2012 (‘POCSO’), etc. all recognizes the child as ‘any person below the age of 18 years’.

PCM Act as its objective prohibits the solemnization of child marriages. In other words, it prohibits solemnization of those marriages where the girl ages below 18 years and boy below 21 years. Hence, a female below 18 years of age cannot marry a male of any age and vice-versa. The Act provides for the penalties against the persons who solemnize, promote or allow the child marriages. However, the Act doesn’t lay any authority over the sexual relations emerging out of such prohibited child marriages. But the Act, indirectly, by recognizing and legitimizing the children borne out of such marriages permits the sexual intercourse within the child marriage.

Further, POCSO, which was recently enacted, was enacted with the objective of protecting children from offences like sexual assault, pornography, sexual harassment, etc. and to provide them with the children-friendly trial system. This Act doesn’t recognize the autonomy of children in any form of sexual matters. Children can be convicted for any of the above crime under the Act. It also provides under Section 2(1)(d) that a child can be any person who is below 18 years of age. Therefore, any form of sexual intimacies or interactions with or among the children below the age of 18 years is punishable under the Act. 

Marital Rape Exception: A Draconian Provision

Marital rape indicates towards those unwanted sexual intercourses against a wife by her husband, where she is unable to give consent either because of force or threat of force or by physical violence exercised by the husband. In other words, it is a brutal perversion against the modesty of the wife by the husband without her consent, where she is mentally and physically or sexually harassed. 

Traditionally, wife’s role within a marriage was considered as docile, meek and of a home-maker. Maintaining sexual relations in a marriage were regarded as obligatory and a societal taboo. Discussing about it in the open was also very rare; hence, the awareness regarding it remains dismal. Economic dependence upon the husband is still a very crucial factor hindering the right of wife being heard and respected. Further, the societal pressure of being a ‘good wife’, to quietly serve, to not complain against anything in the public, makes the position of wife miserable and counseling inaccessible.

However, despite all this, the significance of volition of a woman in making its own decision can’t be over-stressed. Hence, it is quite ironical, that a woman can preserve her dignity, her right to life and personal liberty under the Constitution but it can’t protect her body from being sexually harassed within a marriage. So far, only Section 498-A under IPC (deals with cruelty) can be resorted to by a married woman for protecting herself from ‘vicious conduct of the husband’. But, still, the definition of the term ‘vicious’ is not clearly scripted so as to decide the standard of measure for court’s interpretation as to what amount to ‘vicious’ within a married relationship. Will the excessive desire of sex by husband vicious? Is consent for sex a sine qua non? Or is a marriage a permit for committing rape? These questions are not answered, as both the legislature and the judiciary are silent on the same. 

Marital Rape Exception within Child Marriage: A Wrong Law 

1. Marital Rape Exception is violative of POCSO

As stated above, the IPC provides for a marital rape exception, however, on the contrary, POCSO doesn’t embed any such exception. It provides that every act of sexual intercourse committed against a person who is under 18 years of age is a crime, irrespective of the age or gender of either the victim or the accused. Further, a sexual assault will amount to a more aggravated form of sexual assault if the penetrative sexual intercourse is committed by ‘a person who is the relative of the child either through blood or marriage or adoption or guardianship or through a domestic relationship with the parent of the child or who lives in the same household with the child’. 

Hence, it is clear, under POCSO, that a spouse (who is related to the girl child with marriage) is liable to be convicted for an aggravated crime of a penetrative sexual assault committed by him against his wife, who being below the age of 18 years. This is in no way affected with the legal status of the marriage, i.e. whether it is entered into voluntarily or not, hence, any sexual contact with the wife under 18 years of age is punishable under POCSO. 

This provision in POCSO is in contravention to the exception provided under Section 375 of IPC. Hence, there arises a very pertinent question as to whether POCSO will override the IPC or not? Answer to this is provided in the POCSO itself. Section 42-A of POCSO, which was inserted by the Criminal Law (Amendment) Act, 2013, states that:

Act not in derogation of any other law: - The provisions of this Act (POCSO) shall be in addition to and not in derogation of the provisions of any other law for the time being in force and, in case of any inconsistency, the provisions of this Act shall have overriding effect on the provisions of any such law to the extent of its inconsistency.  

Section 42-A of POCSO, hence, clearly implies that in case any controversy arises as to the application of POCSO and any other statute, the former will come into play and over-rides the application of all other laws. Hence, the exception under IPC to marital rape till the age of 18 will not apply, for being contradictory to POCSO. Therefore, in all cases where the bride or the groom is under 18 years of age, they can be convicted with the charge of aggravated crime of penetrative sexual assault under POCSO.

2. Marital Rape Exception is violative of Article 14, 15 and 21 of Constitution

The marital rape exception as provided in the Section 375 of IPC is violative of the fundamental rights provided under the Articles 14, 15 and 21 of the Constitution. The reason behind such violation is the discriminatory nature of the provision itself, which distinguishes between the position of a girl aging between 15 to 18 years and girl aging above 18 years on the basis of their marital status, which has no reasonable nexus to the purpose it sought to achieve. 

Delhi High Court, also, in a case on its own motion Lajja Devi v. State  held that ‘it is distressing that the IPC “acquiesces sexual intercourse” by a man with his wife above the age of 15 and below the age of 16 years [Criminal Law (Amendment) Act was brought in the year 2013, while, the above case was decided in the year 2012, therefore, during the trial of the Case ‘age of consent’ was 16 years] within a child marriage.

Further, with the change in the societal structure, the age of consent for entering into sexual relationship has also changed. In the year 1860, it was 10 years, in 1940 it was changed to 16 years and recently by the Criminal Law (Amendment) Act, 2013 it was further increased to 18 years. However, the age provided under the exception in the Section 375 of IPC has not been changed; it is still the same, i.e. 15 years. This cannot be justified only on the ground that the concerned person is a married girl. Hence, the above provision is arbitrary in nature and thus, violative of Constitution. 

Additionally, Parliament has also failed to take note of various studies and surveys that shows developing pregnancy owing to sexual intercourse with a girl of age less than 18 years is detrimental to health not only of the girl herself but to the child as well. Hence, the Parliament by permitting or legitimizing the sexual intercourse, within a marriage, with a girl aging between 15-18 years has made the life of the girl and the child (if develops of such intercourse) prone to a considerable risk.

Further, Parliament by upholding the rights of the parents to take decisions about the life of their daughters, below 18 years of age, has violated the rights of the daughter to choose and take her own decisions, to live the life in the best possible manner, i.e. without being forced to enter into any kind of sexual relations only because they have been married of by their parents.

January 1, 2016

Uphaar Cinema Fire Tragedy Case: A Landmark in Criminal Case Compensations?

By Srivats Shankar, 2nd Year Student at National University of Juridical Sciences.

The Uphaar Cinema Fire Tragedy, which took place on June 1997, is regarded as one of the worst fire tragedies that had taken place in post-independent India. However, the fire was merely a consequence of the negligence committed by a number of individuals involved in the case, which as a result amounted to the deaths of over 59 individuals. According to the Delhi High Court, the case involved a number of violations of the Cinematograph Act 1952, that as a result led to the event of June 1997.

During the investigation it was found that a number of serious violations had been made in relation to safety standards, not only by the Uphaar cinema owners but a number of cinemas, dating as far back as 1983. That year was particularly relevant due to a fire that had broken out in a competitor cinema hall, Gopal Towers. This led to a scrutiny of safety standards by the Deputy Commissioner of Police (Licensing). It was found that there were at least 10 serious security violations. These violations were primarily, associated with the Cinematograph Act 1952 and its rules and regulations; it was observed that the licensing conditions and Delhi Cinematograph Rules had been violated, under which the required infrastructure for fire safety had not been implemented.

Among these violations were the lack of sufficient exits and the blockage of space in the basement for evacuation. Additionally, no emergency alerting method for intimating patrons was present. This led to a scrutiny of the standards adopted by a number of cinemas, including Uphaar. These cinemas had to reapply for receiving a license only after they conformed to the minimum security and safety standards. However, the High Court concluded that there was some foul play involved as it was revealed that the cinema did not conform to the minimum safety standards, while it continued to function without meeting the minimum safety standards. It was revealed that they had received some form of 'temporary' licensing that allowed them to continue functioning.

This negligence had its effect on June 13, 1997, when a generator that had earlier in the day malfunctioned had a leakage. This in turn led to an oil spill into the parking lot and escaping into the nearby vicinity, since no drainage system had been established as mandated by guidelines. Eventually the oil was ignited, which according to the court evidence was due to the poor quality of maintenance work carried out on the generator. A total of 59 individuals lost their lives, along with over 100 others sustaining injuries. Most of these deaths were caused by asphyxiation induced by the inhalation of deadly vapours, such as carbon monoxide and carbon dioxide.

Despite the undisputed loss faced by the family members, this case has made two contributions towards compensation given or provided to victims of a case and the quantum of punishment versus the payment of damages. Each of these issues has been increasingly politicized following the Supreme Court order to pay compensation and the quantum of punishment.

The Delhi High Court initially agreed to compensate the families of the deceased an amount of 10 lakhs each, however when this came before the Supreme Court the amount was reduced to 7.5 lakhs. Additionally, the compensation for the victims who suffered from some form of injury fell from 2 lakhs to 1 lakh each. Despite this the compensation provided is regarded as the highest ever given by a court in this country. Apart from that, the two primary accused Ansal brothers were collectively charged a fine of 60 crores, which failing to pay would lead to the serving of an additional two years of imprisonment. Prior to this, the Supreme Court has never handed down such a level of punishment.

It is argued by many groups (including the Association of the Victims of Uphaar Tragedy [AVUT]) that the compensation is insufficient. But it is new ground that the Supreme Court is exploring by offering such large compensation. This has never been seen in the Indian legal system. However, looking back it seems to be the natural course of events that such a large quantum of compensation would be paid to those affected in such a situation.

Referring to the case Prabhu Prasad Sah v. State of Bihar, Justice P N Bhagwati made a very important observation, which was that if someone lacks the ability to pay, then that person must be given the option to either, pay back the necessary amount in relation to compensation or serve the remaining amount in the form of a punishment. Therefore in addition to the amount of compensation that must be determined, the payment capabilities of that individual, should also be considered.

Over time this concept has clearly developed to offer a large quantum of compensation. The Supreme Court has applied the concept of ‘deep pocket theory’ in a certain sense to such situations to serve as a long-term deterrent to groups that do not follow regulations as mandated. However, there have been some questions about allowing the accused in this particular case to finish their sentence if they paid the compensatory amount. It is argued by the AVUT that this is against the idea of justice and the accused in this case must be punished for their actions, which resulted in the tragic events.

The argument put forth by AVUT is restricted to the retributive aspect of criminal law. The judgment given by the Supreme Court in contrast is based on principles of fairness and equality in light of restorative justice. The Supreme Court recognized that, two of the main accused had reached a very advanced stage of life by serving a long period in prison, before the final hearing. Taking all these factors into consideration the Supreme Court gave a relatively sound decision.

On the whole, while it can be argued that the compensation theoretically needs to be higher, the Supreme Court has pushed the boundary and allowed for a wider ambit in relation to compensation for the first time ever and it will be able to build upon such situations if they ever arise in the future.

December 15, 2015

The Relevance of Principles of Prisoners of War in the Third Geneva Convention to members of Islamic State in Iraq and Syria.

By Nandana Rudreiah, 3rd Year Student at National University of Juridical Sciences.

Treatment of prisoners of war

The principles governing the treatment of prisoners of war are part of customary international law which has been codified in the Hague Convention of 1907 relating to laws and custom of war  . The Hague Regulations presented several problems and deficiencies during the World War I because the Convention was practically a codification of the customary laws on war, which were present before the development of advanced warfare. It was not equipped for the scale and the extent of warfare during the First World War and hence this led to the creation of the Geneva Convention of 1929, which was subsequently replaced by the Geneva Convention of 1949 (‘Third Geneva Convention’ or ‘Geneva Convention’) on treatments of prisoners of war. Although the Hague convention was recognised as codified International Customary Law, such recognition has not been accorded to the Geneva conventions. The relatively new Third Geneva Convention while determining the applicability of the convention, adopted the criteria  mentioned in the Hague Convention under the regulations annexed for Article 1. This has been incorporated in Article 4 of the Convention  which with regards to militias and voluntary corps specify that these groups must be led by an individual who would be responsible for the acts of the subordinates, be represented by a distinctive sign recognizable by a distance, carry arms openly and further, most importantly, conduct their activities in accordance to laws and customs of war.   

Can the Third Geneva Convention be applied to the members of ISIS?

The Islamic State of Iraq and Syria has its origins tied to Al-Qaeda and Bin Laden. They were also considered the Middle Eastern wing of the Al-Qaeda since they acknowledged the successors of Bin laden, Abu Musa’b al Zarqawi, and two other guerrilla leaders of the organisation. One of the main arguments advanced for not applying the Third Geneva Convention on members captured from groups such as Al-Qaeda, Hezbollah in Lebanon or Taliban in Afghanistan is that first, they do not conduct their activities according to the custom and laws of war recognised by other nations. The brutality displayed by such organisations is unprecedented. They do not treat prisoners that they have captured, humanely; massive killing of soldiers are a common phenomenon. Moreover they fail to establish a recognisable identity. To illustrate the fighters belonging to Hezbollah in Lebanon, when the soldiers threaten them, they drop their weapons and try to blend in with the villagers near by the battleground. Similarly the Al-Qaeda also does not have a distinctive identity. They do not wear distinctive clothing and they also try to blend in with the Afghan tribes present in their area. Furthermore they are scattered and disorganised. Therefore they fail to qualify under the tests prescribed under the Convention. However human rights lobbyists such as the Red Cross have urged to include such groups also under the ambit of the Convention. 

The Islamic State, although originally associated with the Al-Qaeda had undergone drastic and fundamental changes. First, there is a deep division between the Al-Qaeda and the Islamic State due to ideological difference and  now the Islamic state is an independent entity under the control of a self-proclaimed Caliph, Abu Bakr al-Baghdadi. They maintain territorial control over the territories occupied in Iraq and Syria.  Further they can be recognised from a distance because of their distinctive black uniform. They also carry arms and ammunitions openly. The  Organization  is highly structured with a strict sense of hierarchy. The German Journalist Jurgen Todenhofer who was granted access into the Islamic State documented that the organisation has a recruitment process where on an average 400-500 people are recruited per day. It is also common knowledge that social media is used to promote its agendas. They have control over oil reserves in the occupied territories and they sell such reserves and fund the organisation. This is not the only source through which they get funds, 20-30% of their funds come from the ransom that they receive from the abduction of refugees. Further they also sell ancient artefacts and historic documents to museums. Moreover the organisation is also rumoured   to  have received huge funds by nations that are interested in the agendas of the organisation. The primary goal of the organisation is to establish an Islamic State in the occupied territories with the Caliph as the head of state. This transition of the organisation is truly remarkable . The Islamic State fulfils all the conditions present in the Geneva Convention except the one which speaks of the conduct of armed militias and voluntary corps. The conduct of such groups is the deciding factor, which determines whether they come under the ambit of the Convention. The Islamic State is known for its beheadings, mass killings and brutal treatment of prisoners. They flout the law and customs of war. Therefore strictly speaking the Geneva Convention cannot be applied to the members of the Islamic State. 

However human rights activists such as Anthony Dowrkins argue that the Geneva Convention must be applied to such groups also, but most nations are staunchly against the application of the Convention to these organisations.  The rationale behind such a stance is that a state would follow the Geneva Convention during war with another state with the belief that the other state would also follow such convention. They act as ground rules for war, but when face with a stateless enemy who refuses to follow the ground rules, the state’s incentive to follow them ceases to exist. The reasoning presented by the states is flawed because there must be no incentive to protect human rights. Moreover the Geneva Convention contemplated that the conduct of a state be independent of the conduct of other state or armed militia.


The Islamic State is not similar to the conventional terrorist organisation such as the Taliban or the Al-Qaeda. It occupies a middle ground between such organisations and armed militia recognised by the Geneva Convention because of their conduct in treatment of prisoners of war. This prevents them from application of the Convention. Although the nations are reluctant with the application of the Convention to these groups by citing that they do not follow the law of war, it is the opinion of the author that the Convention should be applied to the member of the ISIS because one of the primary reasons attributed towards the creation of the Geneva Convention was the protection of human  rights during war It forms part of a series of Conventions and protocols  The legal cynicism towards the application of the Convention to terrorists undermines the body of law that has been regulating war for a century. The war on terror without a regulatory body would turn barbaric and a century’s worth of jurisprudence relating to protection of human rights would be lost.

December 14, 2015

Death to Yakub Memon: Should extraordinary rendition be a mitigating factor?

By Sarfaraz Ahmed Khan

The article of Mr B. Raman, the head of the Pakistan Desk at the Research and Analysis Wing (RAW), published on adds new dimensions to the Yakub Memon case. It has raised questions about adherence to the principle of fair trial and the rule of law by Indian investigating and prosecuting agency. If Mr. Raman’s statements are true, Memon was informally apprehended in Kathmandu with the help of the Nepal police, brought to India by road and thereafter flown to Delhi by a special aircraft and formally arrested in old Delhi. Mr. Raman, who was coordinating the entire operation, has been extremely courageous to put in writing the details of the operation which exposes the illegality committed by the state agency with far reaching consequences on the human rights of the accused and the international human rights obligation of Nepal. The term ‘extraordinary rendition’ refers to various irregular methods employed by a state to bring individuals from another state disregarding the formal legal process of extradition.  

Nepal has abolished death penalty and for it to send someone to another country without ensuring that death penalty will not be executed amounts to violation of human rights of the accused. It seems that the Indian investigating agency has indulged in extraordinary rendition to do away with the requirement of providing assurance as was given in Abu Salem’s case to Portugal. Indisputably, India can impose death penalty but the accused was brought from a country which has abolished death penalty. Had the due legal process been adhered to, death penalty would not have been awarded. Should the state be disallowed to take advantage of deliberate illegality? Does such illegality constitute a mitigating factor to determine the quantum of punishment? The answer may be ‘yes’ in all probabilities. In Memon’s case the court was kept in the dark about the illegality of the rendition process and this can tantamount to the violation of the principles of fair trial.           

Extraordinary Rendition, a violation of human rights of the accused

An extradition treaty between India and Nepal was signed on 2 October 1953 that obliges the two countries to extradite accused persons found within their territory by following legal procedures. Countries having extradition treaties are bound to extradite accused persons in adherence to the due process of law. Since Nepal has abolished the death penalty, it is undoubtedly obligated not to extradite anyone without ensuring protection to the right to life of such person. There are a few cases of other jurisdictions which explain this obligation. The Judge De Mayer of European Court of Human rights (ECtHR) in Soaring v. United Kingdom (1989) observed that death penalty itself constitutes a bar to extradition unless the requesting state provides satisfactory assurances that the death penalty shall not be imposed or if imposed shall not be carried out.

India is not the only country that brings accused from other countries by the process of extraordinary rendition. In South Africa, once an alleged terrorist of Al-Qaida, Mohamed, was taken away by the US Federal Bureau of Investigation (FBI) from Cape Town with the help of state authorities. The South African Constitutional Court in K. K. Mohamed v. Republic of South Africa (2001) had found such rendition to be violative of the constitutional rights of ‘human dignity, to life and of not to be treated or punished in a cruel, inhuman or degrading way.’ In El-Masri v.Macedonia (2012) ECtHR found the act of handing over the alleged accused to CIA agents by the Macedonian authorities inconsistent with his human rights protection. In another case, officers of the Italian military security services (SISMI) and CIA agents were convicted in Italy on the charge of kidnapping an accused whose rendition was carried out from Milan to Egypt in February 2003 (Tribunale Ordinario di Milano -Sez IV Penale-, Sentenza No 12428/09, 4 November 2009). Subsequently the conviction was set-aside on the ground of state immunity. It is important to understand that rendition may amount to abduction if done without following the due process of law.

Power of Arrest under Indian law

Section 48 of the Code of Criminal Procedure 1973 (CrPC) allows the investigating agency to pursue and arrest any accused only within the territory of India. To bring an offender from another country, orders have to be issued by judicial authority as per Section 105B of the CrPC. Impliedly, the Indian investigating agency has not followed the process prescribed under Section 105B of the CrPC. In such circumstances, Yakub Memon’s lawyer might argue that he was kidnapped from Nepal and kept in illegal confinement till the time he was shown to be arrested. In fact, from the point of time he was under custody till the time he had not been shown to be arrested, he was definitely under wrongful restraint and wrongful confinement, both punishable under the Indian Penal Code 1860. His illegal detention also violated his rights guaranteed under Article 21 of the Indian Constitution. Although the validity of trial and conviction is not affected by irregularity in arrest, it is a mitigating factor that should be placed before the court.

Consideration for awarding capital punishment

In Bachan Singh v. State of Punjab (1980) the Supreme Court held that death penalty can only be awarded ‘in the rarest of rare cases when the alternative option is unquestionably foreclosed.’ In this case the Court further imposed an obligation on the courts to draw up ‘a balance sheet of aggravating and mitigating circumstances’ and ‘in doing so the mitigating circumstances have to be accorded full weightage.’ In Machhi Singh v. State of Punjab (1983) the Supreme Court laid down that court can award death sentence only after ‘according maximum weightage to the mitigating circumstances which speak in favour of the offender.’ The illegal arrest and detention of the accused is one of the mitigating factors which should have been placed before the court but the prosecuting agency with the aim of securing death penalty not only failed to enlighten the court on this point but also made false statements about arrest and custody.

Were all mitigating factors before the court?

Did the court really take into account all mitigating factors before awarding capital punishment? Mr. Raman’s article also informs us that Memon had extended his support during investigation in bringing the other accused to India to face trial, and most importantly helped India to establish before the world community the role played by Pakistan’s intelligence agency, ISI, in harbouring terrorism. Mr. Raman argued that the cooperation extended by Yakub Memon is ‘a strong mitigating circumstance to be taken into consideration while considering whether the death penalty should be implemented.’

            The following mitigating factors were, probably, not known to the trial court while awarding capital punishment: (a) Memon was illegally detained in Nepal and brought to India; (b) the investigating agency had kept him under wrongful restraint and wrongful confinement till the time he was shown to be arrested; (c) the action of both India and Nepal resulted in violation of constitutional rights of accused; (d) the state of Nepal failed in fulfilling its legal obligation under international human rights law; (e) the state machinery in the zeal of securing capital punishment violated the international norms by not adhering to the process of extradition; (f) the Indian state machinery did not present the demeanour of the accused and the support extended by him during investigation; (g) the Indian state machinery made false statements about his arrest and detention.       

Moreover, Prof. Surya Deva of City University of Hong Kong has found after analysing 86 cases decided by the Indian Supreme court between January 2000 and October 2011 that the judiciary has applied the principle of ‘rarest of rare’ in ‘quite an inconsistent and arbitrary manner’ and the principle has outlived its utility. In fact, in Santosh Kumar Satishbhushan Bariyar v. State of Maharashtra (2009) the Supreme Court itself observed that ‘it can be safely said that the Bachan Singh threshold of rarest of rare cases has been variedly and inconsistently applied by the various High Courts’ as well as Supreme Court’. In this backdrop when the absence of minor mitigating factors can change life into death, such nondisclosure on the part of the state before the trial court, in my view, is a serious omission of the investigating and prosecuting agency which not only deprived the accused of fair trail but also prevented the judges from balancing the aggravating and mitigating circumstances to determine the appropriate quantum of punishment. Such omission can only be rectified if the Supreme Court either remits the case to the trial judge to re-determine the quantum of punishment in light of the facts newly revealed or if it exercises its power under Article 142 of the Constitution to commute death sentence to life imprisonment.

November 1, 2013

The painful practice of Breast Ironing in Cameroon

The ethnic groups in Cameroon, a country in west central Africa, have long hidden a very unusual, painful practice. Some call it a traditional ritual. Others think of it as a means to keep the girls away from early age sexual advances and pregnancy. But for the many girls who undergo this ritual, it has become a way of life over the course of time. Most of us have heard about female genital mutilation (FGM) or khatna practiced largely in the Bohra community in India. But only few know that an equally cruel practice exists in Cameroon and elsewhere: breast ironing.

Activists in Africa have already embarked on campaigns against breast ironing to sensitize the community. Breast ironing seems to have travelled from Cameroon to London, where Cameroonian girls are forced to undergo breast ironing in their community, according to experts. Although breast ironing is most common in Cameroon, “similar procedures have been reported in countries including Nigeria, Togo, Republic of Guinea, Côte d’Ivoire and South Africa”, says Amy Hall, a journalist with the New Internationalist Magazine.

Girls, as young as nine, endure scorching pain every day before going to school and, occasionally, at night. Mothers and aunts heat up objects such as coconut shells, stones and kitchen utensils and use these heated, burning objects to pound the breast tissues of their daughters. Helpless school-going daughters, shell-shocked at the barbarism, simply stand perplexed in pain and wait for the ritual to end. It is believed that fathers usually do not know about this practice and, where they do, may remain absent. This goes on for weeks behind closed doors.

Breast ironing flows from generation to generation. It is believed that girls are made to undergo this practice at the age of ten to twelve (pre-adolescence) so that they have sound memories of the methods and can later repeat them on their daughters. Amy Hall spoke to Ashish Goel about her experiences of interaction with women who had undergone breast ironing. Amy describes: “Ben...underwent breast ironing in Cameroon when she was 13 years old. She feels that the experience pushed her into having a child early because of her lack of confidence. She now has seven children and her eldest daughter had her breasts ‘ironed’ by her mother in law, despite Ben’s opposition to the practice”.

Due to the young age coupled with inadequate literacy, the victims do not formally report incidences of breast ironing against their own family members. Because of this, there are often difficulties faced in tracing these incidents and then highlighting them in the media. Amy, who authored an investigative piece on the subject in New Internationalist Magazine, said: “The main obstacles I faced when writing the article was that there is little research on the topic and that it is usually kept behind closed doors”. But why do mothers turn to be so cruel so as to inflict this inexpressible pain on their own daughters? And why do other female members of the family conspire in this heinous crime? “The reason given for the practice is to stop the breasts growing in order to discourage unwanted male attention, early marriage or pregnancy, sexual assault, and rape”, explains Amy.

But there are also a few who refuse to surrender themselves to this brutal practice. Chi Yvonne Leina “was 14 when she saw her cousin having her breasts ‘ironed’ and when her grandmother approached Leina to do the same she threatened to tell the neighbours and her mother. Her grandmother gave up but apparently watched Leina in fear that something bad would happen to her because of her breast growth”, expresses Amy, who thinks that “it is not common to talk about breast ironing openly, although this is changing as more people share their experiences”. Leina is now a Cameroonian journalist and founder of Gender Danger – an organisation fighting breast ironing.

Statistics from the United Nations Population Fund suggest that approximately 3.8 million girls in Cameroon undergo breast ironing every year. Besides its obvious physical impact, breast ironing results into “long lasting psychological effects on girls”, believes Amy. This is because, “it can seem like a punishment for a girl’s natural physical development and breasts can be a source of personal shame”, she argues.

Besides guaranteeing basic fundamental rights in the Constitution, Cameroon is also a signatory to the Convention of the Rights of the Child. However, nothing concrete has yet been done to protect girls from the menace of breast ironing. “Laws may deter some from practising breast ironing...but...not key to its elimination” and, adds Amy, “Looking at the issue of FGM, many countries have laws against but they are often not enforced and the practice continues regardless”.

The situation in Cameroon is barely different from that of India. In Cameroon too, the blame is conveniently shifted to the victims for being dressed provocatively or going out at night alone. This can only be tackled through education and campaigning, says Amy, who thinks that “brining the issue out into the open, to all genders and age groups is key, as well as improving sex education and a genuine commitment to tackling violence against women and girls”.

May 19, 2013

Is Capital Punishment for Rapists Justified?

In this Guest Post, N.U.J.S. students Prateek Bhandari (5th year) & Waseem Shuaib Ahmed (4th year) discuss if capital punishment for rapists is justified. Views are personal.

The Indian criminal justice system, envisages death sentence to be imposed only in cases of murder and mutiny. This scheme of things is neither random nor accidental. The confinement of the death sentence to only specific crimes involving murder is rather deliberate. This is because death penalty differs from all other forms of criminal punishment, not in degree, but in kind. It is unparalleled in its total irrevocability and in its rejection of the rehabilitation of the convict as an essential object of criminal justice.

It is the uniqueness of the crime and the sentence that led our lawmakers to confine the death penalty to the crime of murder. And even for murder, our criminal jurisprudence has evolved the standard of ‘the rarest of rare cases’ when the court feels that reformation and rehabilitation of the convict is out of the question. In the Indian criminal justice system, life imprisonment is the rule and death penalty is an exception. Thus, any suggestion that the death penalty should also be introduced in cases of crimes against women is a radical suggestion that directly challenges the existing criminal jurisprudence of India. The onus is on those who argue for the death penalty in such cases to show that such crimes also bear the quality of irrevocableness which is specific to murder. 

The question of introducing the death penalty for heinous crimes against women has been raised in the context of the widespread disillusionment with the ability of the state to protect women from such crimes. This disillusionment became very apparent immediately after the gang rape in Delhi last December which led to widespread protests across the nation. Death penalty was suggested as an option because of the belief that the existing criminal law was too lenient on offenders and therefore the punishment had to be enhanced. However, the real problem is not with the quantum of punishment, but with shoddy police investigations, ineffectual prosecutions, judicial delays, etc.     

As the law stands, life imprisonment is the maximum punishment for rape which normally turns out to be a term of 14 years because of commutation of the sentence. If the death penalty were to be introduced, the Court’s options would then become limited to either a term of 14 years or the death penalty. Whereas the term of 14 years may seem inadequate, the death penalty too would seem excessive and disproportionate to the enormity of the crime. To balance the two extremities, a life imprisonment without the possibility of remission/ commutation is proposed, which will run for the entire duration of a convict’s natural life.

Death penalty for heinous crimes against women is also bound to prove counter-productive. In all cases where rape is committed, the perpetrator of the crime has already invited the death penalty upon himself and would, therefore, not be deterred from murdering the victim. Indeed, he would have a reason to murder the victim i.e. destroying the evidence of rape or other heinous crimes.

Death penalty for heinous crimes against women would be a regressive step in the sphere of sentencing and reformation since the global trend has been towards the restriction of the use of the death penalty and the diminution of the number of offences for which it may be imposed. Thus, apart from repeat offences of rape or rape which leads to murder or a permanently vegetative state of the victim, the requisite circumstances for the justification of such a radical and extreme change to our criminal law do not exist.

March 29, 2013

Watched Jolly LL.B? Grab a beer and get over the tripe!

We are pleased to bring to you a review of Jolly LLB by Somdutta Bhattacharya who is an Associate at Amarchand Mangaldas by profession, though his real interests lie in fiction, football and movies.

After a long day at work, a few colleagues of mine and I went down to catch ‘Jolly LLB’. The trailer for this Subhash Kapoor film had promised much. It seemed to be packed with hilarious dialogues and all the dramatic ingredients of one small town lawyer’s sudden rise to prominence in the chaos of legal practice in Delhi. So it seemed that we were all set for a fun, refreshing evening. Unfortunately, by the time it ended, mycolleagues and I were wondering what bars were still open at that late hour so that we could get the movie out of our heads with the help of a few drinks. I later found out that the movie has received mixed to positive reviews, and frankly, I am still wondering why. Maybe my taste in cinema is a bit too sophisticated. Maybe the general populace’s taste in cinema is a bit too unsophisticated. But most of all, maybe it is because I could not forget the fact that I myself am a lawyer while watching the movie.

Jagdish Tyagi a.k.a. ‘Jolly’ (Arshad Warsi) is a Bachelor in Laws from Law College, Meerut and is struggling to establish his practice at the district court in Meerut. He decides to shift base to Delhi and start practicing at the Sessions Court, Delhi and hopes for a change in luck. But before that, he woos his very pretty girlfriend Sandhya (Amrita Rao) through a song (don’t ask me what song, I don’t remember a single one) and dance right in the middle of the district court, with lawyers, and blimey, even the judges, joining in and matching their steps with the lovey dovey couple. Now, I go to the courts almost every day, we are taught to respect that institution and its judges from the very first day in law school, and to see lawyers dancing around in a court made me cringe. Literally.

Anyway, Jolly shifts to Delhi but there is no change in his luck (he even poses as a terrorist in court since the police had exaggerated the number of terrorists to the media!). But then hotshot lawyer Tejinder Rajpal (Boman Irani) comes down to the Sessions Court and defends his wealthy client successfully in a hit-and-run case where a few footpath dwellers had been killed (loosely based on the Saniv Nanda BMW hit and run incident in Delhi). But the media alleges a cover up in the investigation, and Jolly, who had been maintaining a file with newspaper cuttings on this case for some godforsaken reason, decides to take this up. So what does he do? He files a Public Interest Litigation! And it is accepted by the Sessions Court!

A PIL in a culpable homicide case is unheard of till now and one completely fails to understand Jolly’s locus standi in this matter, but what is more surprising and opens up new vistas in the legal history of India is the fact that a PIL is accepted by a Sessions Court. A PIL in India can only be heard by a court which has writ jurisdiction. Thus only the Supreme Court (under Article 32 of the Constitution) and the High Courts of the states (under Article 226 of the Constitution) can admit a PIL. But this is Bollywood, and Constitutional provisions operative in the rest of India cease to take effect when it comes to that magical land of the movies.

Anyway, the PIL is admitted, and Tejinder Rajpal devises a scheme, taking Jolly into confidence, whereby he extracts a lot of money from the client while Jolly agrees to lose the case and receive a cut of that money. But when Sandhya, who is now Jolly’s wife, comes to know this she leaves Jolly’s home. This spurs a change in Jolly, who returns the money to Tejinder and takes up the case again honestly. He tries to procure new evidence and does manage to procure some, after a lot of drama, including getting beaten up in the court washroom by Tejinder’s goons posing as lawyers and being held at gunpoint by the officer who had conducted the investigation. In the final hearing, both lawyers, including the extremely established Tejinder who has not lost a single case till now, deliver extremely emotional speeches without any valid point of law, which if actually delivered by an advocate in an actual courtroom would be stopped by any judge midway due to its complete lack of legal relevance.

If you thought Bollywood’s days of emotional courtroom speeches (remember Sunny Deol’s (in)famous ‘tarikh pe tarikh’ speech in Damini?) were over, well, think again. Anyhow, judge Sunderlal Tripathi (Saurabh Shukla) states that while everyone knows that Tejinder’s client is guilty, people like him always manage to escape by covering up evidence. But he refuses to let this happen again since it is the last case he is hearing before his retirement, and hence holds Tejinder’s client guilty, while considering it perfectly normal to not give any cogent reason for the conviction whatsoever. Hence a Sessions Court delivers a judgment based on criminal laws in a PIL! And through this royal mess, Jolly makes it big, becomes a cult hero among lawyers and the media and also becomes the first lawyer to defeat the mighty Tejinder Rajpal.

So that was it. It has a pretty shoddy storyline, not a single song worth remembering, very little humour and somehow even the dialogues that seemed funny in the trailer evoked no laughter whatsoever from the audience when they were actually delivered in the movie. The only saving grace is Saurabh Shukla’s depiction of judge Sunderlal Tripathi. One is better off watching the trailer, actually, rather than spend a lot of money to catch it at a multiplex. And as I said, I might have liked it a bit more had I not been a lawyer. But fortunately or unfortunately, I am, and so are my colleagues.

And as a lawyer, watching Jolly LLB will make you want to run for the nearest bar. So that you can forget the utter tripe you have just seen by having a few drinks.

March 20, 2013

A Get-Set-Go for Italian Marines’?

The Italian government and the Congress – led Indian government have one thing in common: they both promise but never fulfill. But the politics in Rome is not as upsetting as it is in New Delhi. It is only fair for the Italian government to raise preliminary objections on the jurisdiction of Indian Courts to try the two Italian marines’, charged with murder of fishermen Pintu and Jelastin, in an unfortunate killing that took place last month, off the coast of Kerela. And that the Italian government did what it could, under its bilateral relationships with India, should not come as a surprise. Of course, and if at all the matter is pursued through international dispute settlement mechanisms, counter objections to that effect could also be made from the Indian side.

Before that, let us look at the way these two marines’ were handled while they were in judicial custody in India. The marines’ were released on bail despite there being strong charges of murder; they were allowed to put up in fashionable hotels, and; finally their request to spend a joyful Christmas vacation with family in Italy was readily compromised by the government. In the meantime, Justice Altamas Kabir reprimanded the government for failing to commence a consultation process. But soon thereafter, the Supreme Court itself – based on the advice of the highest law officers in India – considered another request from the marines’ to exit from India, on the ground that they needed to cast their votes in the Italian elections. This request for casting vote was backed by the Italian embassy, approved by the government of India, and sanctioned by the Supreme Court. The marines’ left Indian soil, never to be seen again, and that was the end of the plot.

So, where are we now? The Congress government in the Center does not seem to own the blame, even worse, the Kerela government, also led by the Congress party, has not cared much about a quick and proper rehabilitation of the families of the fishermen, who were the only source of livelihood for their immediate survivors. From Italy’s side, things do not appear too optimistic either, especially after the coming into power of the new government. But the fact of the matter is that, as an independent sovereign nation, India could pursue its interests under international law – whether under the Sea Convention or otherwise – to call upon Italy to observe, and surrender to, the Indian judicial system. But the Congress is, of course, mindful of the fact that the marines’ are NATO members; Italy is one of the favorites in the European Union; and, there is a huge possibility that countries in the West could team up against India on this issue should occasions so arise in future.

The current impasse seems to suggest that Italy is above India and India’s highest courts. The non-confrontational attitude of the Italian government and the indifference of the Italian embassy in India are together indicative of the immaturity with which the ruling government has started, and gradually proceeded, on this sensitive issue. The government of India has a few more days to sit, do its homework, and craft a stern yet strategic response for Italy if the marines’ are not sent back to India by March 22. But certainly, diplomatic settlement between the two governments is at an appalling state already, and there is nothing that the Congress government could do to make it worse, and that includes expulsion of the embassy or instituting contempt proceedings against him for disobeying the Supreme Court’s order or both.