1/10/14

From criminals to disabled

The debate whether section 309 of the Indian Penal Code (IPC) that criminalises attempt to commit suicide should go from the statute book is just as important as effacing section 377 and yet it has not drawn half as much attention.

Consider the commonalities shared by both sections: both date back to a pre-constitutional, colonial era; have survived judicial scrutiny based on constitutional tests and; have influenced India’s highest court to solicit legislative consideration in revisiting the law in view of global developments.

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But unlike popular outrage against section 377, which is under further judicial review, the Mental Health Care Bill, 2013, which turns the legal jurisprudence surrounding section 309 upside-down has hardly raised any eyebrows.

The bill introduces several changes to the mental healthcare system in India to bring the existing scheme of laws in line with the U.N. Disability Convention which India ratified in 2007. However, the frowning part of the bill is section 124, which although seems to appear generous at first instant in that it decriminalises attempt to commit suicide, is set to leave suicide survivors, particularly women, in a far worse state of existence.

The existing section 309 allows the police to imprison or impose fines on any person who “attempts to commit suicide and does any act towards the commission of such offence”. The conviction rate under section 309, however, is so low that attempted suicide is barely considered a crime. This is because officials tend to always take cases of attempted suicide with a pinch of sympathy.

Section 124 of the bill introduces two significant changes to the existing jurisprudence on the subject.

The first change is that attempted suicides will now be decriminalised, that is, suicide survivors will no longer be punished under section 309.

The second crucial change is the incorporation of a legal ‘presumption’ where all suicide survivors shall be ‘presumed’ to be suffering from mental illness at the time of attempt. The presumption, however, is not conclusive and can be rebutted.

Under the Indian rules of evidence, this implies that the onus to prove mental soundness will be on the suicide survivors against whom the presumption will lie. In other words, all suicide survivors will be deemed to be suffering from mental illness unless the contrary is proved to the satisfaction of the competent authority.

The move to decriminalise attempted suicides perhaps came after Justice Katju’s observation in the case of Aruna Shanbaug that the Parliament should delete section 309 “as it has become anachronistic”. “A person attempts suicide in a depression, and hence he needs help, rather than punishment”, Justice Katju observed.

In light of this development, decriminalising attempted suicide is, of course, a step in the right direction. However, section 124 of the bill is unreasonable in effect, if not in intent. This is because there is no proportionality between the means adopted and the legitimate end that section 124 of the bill seeks to achieve. Let us take the example of attempted suicide by women facing domestic violence at their in-laws – one of the major risk factors for suicide in Indian household.

The theory that such cases will be covered under the abetment provisions of the IPC is misplaced. This is because the victim may be considered, by operation of the legal presumption, inefficient to give evidence in a court of law to support her case unless she discharges the burden to prove her sound state of mind.

The presumption in such cases is more burdensome to discharge given the mental trauma that the victim undergoes coupled with indifferent family members, relatives and the apparent inefficiency with which healthcare institutions work. Besides, the bill provides for compulsory medical treatment, with or without consent, which invites further institutional abuse and undue encroachment upon victim’s dignity and self-autonomy.

It is appalling to see how the bill shifts the focus on suicide law from a “rights” issue to a “disability” issue. The bill fails to appreciate that mental illness is only one of the many driving factors behind attempted suicides. By incorporating a legal presumption of mental illness, the bill not just trivialises the law on abetment to commit suicide, but also disempowers victims of domestic violence who have to unnecessarily yet compulsorily go through the stigmatized experience of mental health care system in India.

Even worse, the everlasting fear of institutionalisation may encourage those attempting suicide to, in fact, succeed.

11/1/13

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.

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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, Cรดte 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.

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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”.

5/18/13

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.
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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.

3/29/13

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.

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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.