let us pause a moment and think of what consent means

Before anyone reads the rest of this, let me clarify that that this blogpost is more about the definition of consent used in the judgment and NOT about the age of the woman or the stage of her menstrual cycle, because most of the social media outrage has been on the court commenting that the deceased rape victim was menopausal.

http://www.firstpost.com/living/delhi-hc-didnt-say-menopausal-women-cant-be-raped-heres-what-it-really-said-1786761.html

http://daily.bhaskar.com/news/NAT-TOP-forceful-sex-with-woman-above-60-years-age-not-crime-says-delhi-hc-4795538-NOR.html

http://www.dnaindia.com/india/report-forceful-sex-on-menopausal-woman-not-rape-says-delhi-high-court-2031918

http://indianexpress.com/article/cities/delhi/man-acquitted-of-rape-as-delhi-hc-finds-woman-died-of-intoxication-not-forceful-sex/

so there is currently a heated debate going on among court reporters covering Delhi High court about this judgment and the way all of us have covered this story. because even though this judgment was reported last week in every newspaper, including mine, DNA’s story today is the only one which has raised the issue of the language used by the judge in his judgment as opposed to the legal reasoning we all chose to report, because frankly NO one wanted to take on the judiciary and face a potential contempt charge for pointing out flawed reasoning or injudicious use of certain words in a judgment given out by a very senior and very respected judge of the High court.

at the outset, I would like to apologise to this deceased woman. I as a reporter am also guilty of failing to play up this story as much as it deserved to be. I failed to highlight the story and raise the questions the DNA story and the later Legally India story has.. 

the debate among the reporters weirdly enough, is more about how much trouble the DNA guys are likely to be in as opposed to what the judgment is all about.

lets examine the facts- woman, age 60, died due to asphyxia caused by the food in her stomach going back up… in layman’s terms she choked on her own vomit and died.

fact 2- the death occurred during or very near the act of sexual intercourse

fact 3- there are injuries on her vagina, indicating forceful sex, something that the court itself has recognized and taken note of in the judgment.

fact4- there are no other injuries anywhere on her body, which the court has taken as evidence that she did not resist the sexual intercourse, no matter how forceful it may have been

the problem with the Indian legal system is that we tend to give benefit of the doubt to rapists and murderers because somehow, somewhere we cannot accept the idea that RAPE can happen without the victim fighting tooth and nail to throw off her rapist.. she doesn’t need to be battered half to death to protect her virtue.. and in this case, since she was supposedly drunk, the court has simply said that there is nothing to prove lack of consent.

one particular bright spark among our group of reporters, and may god give him SOME sense at some point in life, started arguing that ofcourse people have sex when they are drunk. “daaru pi ke sex nahi hota kya?” was his argument.

now while his argument as an abstract comment on the stupid decisions people sometimes make while drunk is one thing, in this situation, in this debate, it was probably THE stupidest argument made…. the woman is drunk out of her mind. the guy is also drunk, the woman’s husband goes out of the house coz he wants to go drink with a buddy instead of his wife and their neighbor. and just a few minutes later, she’s found dead with her clothes array and injuries on her vagina..

WHY on earth is this not rape?? how is a drunk, passed out woman presumed to have given consent???

the court has gone by the legal principles of proof beyond reasonable doubt and acquitted the 46 year old man of both rape and murder. that part no one can argue with because benefit of the doubt and presumption of innocence is so inherent a part of our legal reasoning that the judge HAD to have given that decision as far as the murder is concerned.

but RAPE? didn’t we recently amend the entire law on sexual offences to say that if she is incapable of giving consent for whatever reason it will count as a rape? severe intoxication IS under Indian law a legal excuse. if someone is drunk, they could NOT have given consent.

and what about the injuries on the woman?? the court in its judgment has said categorically that there are injuries on her vaginal area indicating forceful penetration. does that not count?? how did the court come out with the reasoning that “forceful” is not the same as “forced” in this particular case??

the woman is NOT capable of giving consent. There are injuries on her genitals. she is SO drunk that the sex forces her to vomit and she chokes to death..

HOW IS THIS NOT RAPE?? sure this is not murder, but this is culpable homicide. unintentionally or not, the act of forced sex killed her. how are we letting the “oh she was drunk” argument cloud the debate so much that the rapist goes free.

what would your reaction be if the woman in question was not a drunk old housemaid from the slums but the 22 year old daughter of a businessman who had tequila shots and was then given rohypnol at an upscale bar?

would you still say she may have given consent so the act was not rape because there is no injury? would you still say that forceful sex is not the same as forced sex??

water water everywhere...

The Delhi High court today has told the Government and the civic agencies of the city to submit yet another report on the measures taken to prevent waterlogging in the city after they found that the reports submitted today said nothing about the actual work. The court's been monitoring what the government is doing to tackle the veritable floods that happen every time the rain gods descend and create swimming pools out of potholed roads.. turns out that even they admit that they haven't really done much...

The report  was only talking about creation of a task force and committee meetings, which, as the Chief justice himself commented, "can go on till eternity."

coincidentally , after reaching office this evening, for some reason I found myself looking up Gertrude Stein's quote "a rose is a rose is a rose" on wikipedia, and fell down the rabbit hole of random wikipedia clicks... and THIS particular gem is what i found...

"The Persian philosopher, Ibn Sina (Avicenna), once wrote the following response to opponents of the law of noncontradiction:

"Anyone who denies the Law of Non-contradiction should be beaten and burned until he admits that to be beaten is not the same as not to be beaten, and to be burned is not the same as not to be burned."

John Locke claimed that the principles of identity and contradiction were general ideas and only occurred to people after considerable abstract, philosophical thought. He characterized the principle of identity as "Whatsoever is, is." The principle of contradiction was stated as "It is impossible for the same thing to be and not to be." (from http://en.wikipedia.org/wiki/Three_classical_laws_of_thought#Aristotle )

obviously someone should make the Delhi Civic agency officials sit down and read their works, (preferably also go through the lesson Ibn Sina recommended) till they realise that a job done and a job Not done are different things, and just filing a report saying that they have started the work does not equate to the work getting done...

would this judge hav said something like this had the lying complainant been a man?

ofcourse not, no one would EVER imply that simply because one man made a false complaint, the entire 'male species" were lying bastards would they? atleast not on judicially stamped judgements they wont... but please feel free to paint ALL women black because one woman lodged a false complaint against her friend's  ex boyfriend... even when you don't actually have any proof that the complaint in question was actually filed on the ex's say so.. you just take the fact that its "probable" the the ex's friend filed a fake complaint, and blame ALL women for being vindictive b****s
The Pioneer

The Indian Express


Justice indeed...

Court acquits man, holds he was implicated at ex-girl friend's
behest
    New Delhi, May 13 (PTI) A Delhi court has acquitted a man
of the charge of attempting to kill a woman, saying he was
implicated at the instance of his ex-girl friend to settle
scores with him.
    While deciding the case, the court said there was no
apparent reason or motive for the accused to assault the
victim, who was the friend of his estranged lover, and the
possibility of framing him in the criminal case could not be
ruled out.
    "Female of the species are more dangerous, which seems to
be correct. A woman scorned is capable of doing anything as in
the process, the social norms, customs and for that matter
even the law cannot be an obstacle or a deterrent. The instant
case seems to be one such example," Additional Sessions Judge
Vimal Kumar Yadav said.
    The court acquitted East of Kailash resident Jitender for
allegedly assaulting the woman on the night of April 12, last
year after entering her house and, thereafter, fleeing the
spot by locking her inside. The woman's brother had lodged the
complaint at Amar Colony police station against Jitender.
    The court said the woman's testimony and the surrounding
circumstances were not appealing to logic and reason and the
testimony of other witnesses were contrary to normal human
conduct and behaviour which could not be relied upon to hold
the accused guilty.
    Holding that the whole episode was "shrouded under
mysterious circumstances", it said, "Apparently, things have
got intertwined in a complex jumble which makes the picture
quite hazy and in turn case doubtful."
    The court said that the story on behalf of the accused
seemed probable that "he has been falsely implicated in order
to settle scores at the instance of his ex-girl friend with
whom he was having a kind of affair, which had reached the
stage of getting married also..."
    It asked as to why the victim was not taken to hospital
by her brother on the night of the incident or the next day
and instead her friend had called the police control room and
had taken her to the hospital.
    "Thus, the possibility of framing the man in the criminal
case due to the injury sustained by the victim accidentally or
self-inflicted, cannot be ruled out," it said.

a journalist's confession....

I joined this profession with a starry eyed idealistic dream of "doing good".... that as a reporter, what i print will bring justice to people, that i will help someone somehow by putting their story out to the world... then i was told that emotion and ideals have no place and a reporter must be objective and report the 'truth'

the problem is, that there are truths aren't absolute, they're layered.. what is true in one context may be untrue from a different point of view.. trouble is that a view that WE put out then takes the place of 'accepted truth', and edges out what the other conceptions may have been...

it has been said always that history is written by the victor.. whoever holds the pen controls what is told to the world and therefore accepted as the 'truth'. but what if the "Truth" has many many more layers than the 'truth' does?

where does one draw the line between the 'official written word' and one's own misgivings?? a story that I have written today is something that i was questioning while i was writing it..i knew there had to be more sides to the story, that the court has taken a decision which might not be teh correct one, but My personal misgivings have no place in a newspaper.. so i tamped down on my misgivings because it was all there is Black and white with a judicial stamp on it... the story is not in the black and white, the story is in the multi hued spectrum that the black and white is made of... but i chose to write the black and white, ignoring the fact that even in a court of law, black and white are not the only colours...

the worst thing is, professionally and legally speaking, what i have written is correct. There is NO factual error in my story, whatever i have written is what a court of law has noted in its duly stamped judgment... there is no way anyone can fault me, professionally speaking, for the story that i have done.. maybe i could have dug a little more, made the story just a little bit more rounded, but it wasn't professionally wrong of me to go by what the court has ordered... court reporters don't always take the other side's opinion once the court pronounces its judgment.. once its in black and white, its there, till a different court overturns the judgment...

its my heart and my soul that KNOWS there is more to this story.. and that i should have tried to get that 'more' before mechanically going ahead and writing the story... that I am at fault for simply opting for the comfort of going by the 'official' word and ignoring the questions that my own conscience raised... there is someone who was exploited.. even if one type of exploitation was  not there, there are others which have now been dismissed... i could have written about those, but since the court dismissed everything, i didn't write it either... legally my choice of focus is correct, i make no apologies for writing the story that i did.. but morally, i should have found some way of writing what the court chose to dismiss..

to the person this judgment affects most directly.... I am sorry. I will try and put your side of the story out in the world too..

hot cakes to hot potatoes

So this judge made a rather interesting observation today... "The questions raised by the arrest and detention of SM Kazmi will have repercussions on the entire judicial process that is being followed under the stringent Unlawful Activities Prevention Act"... No shit sherlock... I, a barely graduated law student cum rookie journo could've told you that....when the police and courts start taking decisions without clarifying points of law, somewhere or the other the lapses will come back to bite the entire system on its ass.

I wonder why the criminal justice system in this country is so messed up... on one hand you have police officers and lawyers who take money to bury cases of rape and murder, on the other hand you have overzealous or just plain careless prosecutors who come strutting to court without clearly figuring out just what their argument is going to be, on a different hand you have prosecutors who bludgeon their way through procedures and laws just because they're the "state" and can do no wrong.. another hand shows you judges who either don't care about what rules they're bending, or just let their exalted status inflate their egos and then refuse to hear any plea that's against their opinion. on yet another hand you have turf wars between the police departments, on yet another ego clashes between prosecution and judges.

any way you look at it, that is far too many hands groping around and sullying the criminal justice system of the country..
 

the curious case of SA Kazmi

so the law is either the written word or customary practice.. but what about when the written word is ambiguous and the practitioners are stumbling all over themselves to figure out what to do??? then we get the case of a man in Judicial custody being taken up and down the judicial ladder while judges all over the place try to assign authority to each other.
SA Kazmi was arrested under the provisions of the Unlawful Activities Prevention Act, the UAPA.He is currently in custody of the Delhi Police Special Cell. While I , and indeed the rest of teh world, don't know enough about the charges against him and the evidence available to even begin to hazard a guess about his guilt or innocence, the past couple of weeks have shown me that the Legal system in place to handle such special laws is quite seriously suffers from ambiguity and lack of clear authority structure.

The Police brought him before the Chief Metropolitan magistrate, the highest of the lowest rung of criminal judiciary. Then the Sessions court, which is the next rung on the said that the CMM does not have the power to hear cases under the UAPA. So the matter stood still for a while and then was heard by a Sessions court. Then the police decides to approach the High Court of Delhi, the highest judicial authority in the state. The high court decides to deliberate on the question of jurisdiction, and in the interim says that the prevailing practice i.e of bringing such cases before the CMM's court, should continue. The High court will now decide on the question in October.
Meanwhile, this man who has been in police custody for over three months is taken to four different courtrooms in the span of two days while judges remain confused. Is this really how a legal system with such a huge number of written statutes is supposed to work???

And he isn't the only person affected by this legal confusion, questions may be raised about the legality of the detention of others, including suspected terrorists allegedly belonging to the Indian Mujahideen and Lashkar -e - toiba, simply because the courts haven't decided who exactly is competent to hear cases of people arrested under the UAPA. If the High Court decides that the CMM never had jurisdiction, then the courts will be left with a fair amount of eggs on their faces, specially because the fate of terror suspects hangs in the balance.

so just what are they teaching the police in the so called "sensitization sessions"

Here is a quick reckoner. In 2010, as many as 414 rape cases were reported in Delhi, the highest among 35 major cities in the country. According to the National Crime Records Bureau (NCRB), the conviction rate in rape cases in the capital was a dismal 34.6 percent.

In a two-week long investigation, Tehelka undercover reporters posing as research scholars, visited 23 stations across the NCR and spoke to more than 30 policemen with experience of 20-30 years.

cover story in TEHELKA magazine

NDTV report

Seventeen senior cops of over a dozen police stations across Gurgaon, Noida, Ghaziabad and Faridabad were caught on spy camera blaming everything from fashionable or revealing clothes to having boyfriends to visiting pubs to consuming alcohol to working alongside men as the main reasons for instances of rape. 'It's always the woman who is at fault' was in essence the argument offered by a majority of the cops. Many of them believe that genuine rape victims never approach the police and those who do are basically extortionists or have loose moral values. Others believe that the women from Northeast could never be victims of forced sex as they are invariably involved in the flesh trade. Even more shockingly, some of them are of the view that if a woman has consensual sex with one man, then she shouldn't complain if his friends also join in. If a woman is doing late hours at the office then she had it coming... and the arguments keep coming.

misogynistic and completely ridiculous arguments from people who would rather blame the victim than do their actual job.

Yes i agree that there are a shocking number of false cases filed as far as sexual crimes are concerned.. but that doesn't mean that one dismisses real concerns out of hand, and it REALLY doesn't mean that a woman out of the house alone is "asking for it"

You aren't a 'woman' here.. you're the "Vakil Madamji"

Child marriage is an accepted, if outwardly hidden norm for a large section of Indian Population even today. despite the various warnings and "social awareness"  about the detrimental effects of child marriages on the children, the family and society. Having an express Law banning child marriages doesn't seem to have worked very well because people are still stuck in the "lets get them out of our hair and to their 'own' family as soon as possible" mindset. 

infact, i recall having a major argument with someone recently about child marriages and the impact they have on the girl. shockingly, this guy was a "social worker" employed at one of Delhi government's 'Gender Resource Centres', which are run by NGOs in the city and provide employment, education, self help aid, legal and medical aid to poor women.This man has been working there for over a year, raising awareness about education and social issues such as gender based violence, population, sanitation etc. he's a graduate from IGNOU and belongs to what passes as a 'well off family' in the area, roughly as lower service class family. 

and despite the fact that this man is employed by an NGO that seeks to empower women., his outlook is set firmly in the tiny little box that his 'community' allows. 

The first argument he gave in favour of child marriages was a very cliche'd "why bother educating girls when all they have to do is take care of the house?" this while more than half his co-workers are women. 

the second was "these people are poor, they cannot afford to feed and take care of girls". This when his co-workers are active contributors to the family coffers and he himself is working with women's financial self help groups.

third- "madamji people say bad things about women who roam around outside the house and tallk to strange men" THIS when i was sitting in the office of the NGO with him alone and having this discussion.. so did that  mean that according to this man I and all teh wormen working in his pffice were not worthy of his 'respect' because we were out of our houses?? 

he apologised for the last remark though when he realised that i had taken serious offence to al his arguments. He stubbornly refused to take back his arguments though, and as a last word, his closing argument was "madamji you belong to a different society. Here people respect you because you are from a different social strata and are educated. No one sees you as a 'single young girl' here. You are the "Vakil Madamji".

so when the society refuses to give these girls and boys any identity beyond their membership of the family, when their aspirations, their very existence as a rational being is denied, is it really a surprise that the government needs to take seemingly weird, drastic measures to ensure that laws are complied with?

This is the news item that prompted this post:

Bharatpur admin makes DoB of bride, groom must on wedding card

PTI | 06:03 PM,Mar 31,2012

Jaipur, Mar 31 (PTI) To check child marriages, Bharatpur district administration in Rajasthan has taken an unique initiative of making it mandatory to print date of birth of the bride and groom on wedding invitation cards. A circular was issued on Thursday, directing all press owners in the district to print the cards only after taking age proof of bride and groom. "Legal action will be taken against such press and registration would be cancelled if they fail to do it...To check that they are following the guidelines, we will conduct surprise check," Bharatpur District Collector Gaurav Goyal said today. "The step is aimed at ensuring that no child marriage takes place on the upcoming occasion of Aakha Teej," he said, adding that the order is for two months now and may extend further. Child marriages are rampant on the occasion of Akshya Tritiya particularly in rural areas in the state.

lets talk about Sex baby...

how does one define 'morality'?
doesn't public morality change practically with every generation? even with every new development?


whats 'natural' and whats 'unnatural'? or the even vaguer 'NORMAL'? when you have 7 billion people on the planet, and several million ways of doing things, then what defines 'normal'?


is it 'normal' to hate someone just because they do things differently, even when what they do is not affecting anyone at all?
why is it 'normal' to look down upon half the population because they weren't born into the right family or community or gender?
how is it 'normal' to live in fear and cover up when one steps out or lie about one's family or sexual preference to protect oneself?
how is it 'normal' to conform at the point of a sword, literally being killed for not following social diktats?


just yesterday, Fali S. Nariman stood up for the rights of Homosexuals in court and stated that

things had changed so much in recent years that family planning and population control now find a place in the Constitution. “What are the petitioners moralising about? In 1860, the thoughts that prevailed were of a different kind. We live in different times. We have to move with the times.”

(the Hindu March 2, 2012)


but then, he made a statement that completely perplexes me..


"any homosexual act may be unnatural but not against the order of nature"


what IS this 'natural' and 'unnatural' in today's context anyway?
Victorian England was of the opinion that sex was simply for procreation and therefore 'unnatural sex' was the sort that did not fall within the boundaries of sex for procreation between a man and a woman. but in that era, Sex per se was not something that was 'allowed' by polite society.. it was hidden away as a 'Baser instinct' and hallowed into a sacred task between man and wife for the furtherance of the species. 


And even THEY knew that this opinion was a load of crap because Sex for pleasure existed way before some church decided to restrict pleasure for the sake of religion.
so why does today's supposedly secular modern society have such a view of sexuality? 


the same country whose population rises by the millions each week keeps sex hidden away as a taboo topic. its a 'we shall not talk about safety or informed decision making because someone somewhere decided that simply banning a topic was enough to ensure that the consequences of the action would be minimised.....


if you don't talk about it, it will go away... but that doesn't happen now, does it?


Sex for pleasure exists, Homosexuality exists, AIDS exists, the ever increasing population EXISTS because people refuse to actually deal with sexuality and safety in a rational manner 
because 'polite society' doesn't talk about it


because apparently, talking about  it makes people want to do it.. because acknowledging the existence of something will make more people "experiment with deviant behavior" and "destroy our ancient culture"




what IS this morality that they're trying to protect????

Speak now

or forever hold your tongue....

That, i suppose is the gist of a lengthy debate on freedom of expression, censorship and cyber laws that i attended today.
surrounded by several rather well known/notorious/ seriously active activist- blogger- thinkers, i was wondering where a discussion that has all the potential to disintegrate into pure intellectual- political state anti establishment rhetoric will actually go.. While for a bit it did veer into the "the state of affairs is rather depressing" mode, the end result of the conference was actually a strong resolve to involve people and evolve a strategy to ensure that cyberspace atleast remains as free as we can keep it.. Ultimately, it is upto the users of cyberspace to crate as much awareness as possible to ensure their own safety, privacy and freedom to say and write anything and everything they want...


So what IS it that a simple person sitting in some corner of the country do?

• SPEAK UP.. if there is anyone who is trying to shut down your voice, speak louder.. contact other bloggers, develop a network that will ultimately ensure that if you are unduly harassed then you have backup.
• NETWORK. create a support system. not just for yourself but also for every other person out there who is after all trying simply to be heard in this cacophonic world.
• SELF REGULATE. No one else has the right to tell you what to say or not say.. but try and stay away from deliberately insulting anyone or saying things that you would deem offensive if you were talking to friends about. it is quite strange that all discussions about censorship and regulation portray 'government' and 'corporations' as the big bad wolf threatening to huff puff and blow away our right of free speech, but ultimately MOST bloggers will self censor their own posts or comments on their blog with an eye on how their family/society/friends/ sensibilities will react. Ultimately, the government is only policing once "somebody" has deemed something offensive. Even in today's world, it is not so much the threat of the law coming down on our heads but a more sophisticated version of "Log Kya Kahenge" that governs most of one's actions.So please, avoid tension, outrage and possible lawsuits, and refrain from saying things that you wouldn't want said about you without proper proof..

oh and before i forget.. THANK YOU to the Internet Democracy Project and everyone at today's conference for the amazingly informative day 

The Dignity of Court

I pray for the indulgence of the HONORABLE court and my esteemed colleagues and seniors, but as a woman, I present this case solely from the woman's perspective.

One would imagine the Delhi High Court to be full of well educated, genteel people who twist and turn the interpretations of the Law to suit their clients' interests. However, today I learnt that no matter what you may perceive on seeing the black coat and gown and band, the MAN triumphs over the Gentleman.... Today, 13th January 2012, a Male Advocate of the Delhi High Court first misbehaved with and then slapped a Lady advocate IN court.
there may ofcourse exist numerous variations in the story depending on one's political/gendered/hearsay perspective. the facts on record so far stand thus:

There were two lawyers, one male and one Female present before the Joint Registrar's Court, a crowded room, presenting arguments over a matter.
The gentleman in question jostled against the lady, who told him to stand back.
the gentleman after a heated altercation, put his hand on the lady's chest and pushed her. More than once.
The lady slapped him
the gentleman slapped her in retaliation...

There were several people present in court and the number of slaps and the number of pushes are unclear. There are several versions of this story.

But the facts that each story contains are.
he touched her- she slapped him- he slapped her back.

You would expect any person who accidentally brushes against you to simply apologise and move away. this man didn't. He  got aggressive- he pushed her, touching her Breast in the process. and instead of apologising, shouted at her and slapped her!

the registrar after some efforts to pacify the situation there reported the matter to the Chief Justice of the Delhi High court. the CJ, after hearing both sides and a few other people who were present on the scene held the man in Contempt of Court and punished him. His punishment- Judicial Custody for 7 days and Disbarment for 2 months.

and the High court erupted.
there were many many male lawyers who were outraged at the fact that a lady lawyer had slapped a man in court. several others refused to let a member of the Bar be sent to Jail.
To their credit, there were many more lawyers who felt that the man in question had been sent off lightly after he had compromised the dignity of the Court,

but as of Five PM, the order sending this man to jail had not been passed. There was an active lobby trying to ensure that he didn't go to jail, and there were people questioning the credentials of the Lady in question and dismissing her complaint as false... The Chief Justice was trying to create a compromise wherein the man tendered an apology and the Jail sentence could be dismissed.

 Worse still, elements of regionalism, sexism and communalism had crept in to the discussion.
the Man belongs to Bihar- The woman shouldn't have slapped him

Is THAT what is more important than the fact that a so called officer or the court had seriously misbehaved with a Lady officer of the Court?

A woman has been molested and humiliated in front of colleagues, clients and court officials. And there are people protesting against punishing the Man responsible!
what message does that send out to the men of this country? do whatever you want and just say sorry, all will be forgiven?? or that if you're aggressive enough and shout enough we'll make sure the women shut up and not say a word when you molest them?


EDITED TO ADD------------------------

The advocate concerned was finally sent to Judicial custody for 7 days and disbarred for 2 months.

Most Humbly Prayeth

Today in Court, for the first time in my life, i find myself wondering just what kind of people pass the Bar and get to positions of responsibility and respectability.. The petition by Google and Facebook etc against the Government is being heard in the Delhi High Court and  from today's discussion it seemed rather like some of the court officers were either HIGH or had never in their lives used the Internet.


sample this...

Counsel: your lordship if the state can only tell us where the offending material is available we will make efforts to remove that material"
His Honour: very well counsel, the offending photograph is available on &$^%&.com.
Counsel: your lordship this is merely the name of the website. that is like telling us the picture is in Delhi. If your lordship may be kind enough to tell us the URL we will take steps to block that URL
Opposing counsel: lordship when we give them the website they tell us its not sufficient. what is a URL??? will they only take some steps if some offending pictures of their own family members will pop up on the internet?? we have told them the name of the website, now they should block it!
Every one in Court: huh????????????????????????????????
His Honour: Mr Counsel you must show this Court that you are serious about taking care of offensive content otherwise we will have to become like China and block everything!
Someone in Court: WTF just happened dude!..................

seriously, have these people NEVER used the internet????????


DISCLAIMER: there are almost verbatim transcript of the last few minutes of conversation in the courtroom today.. I most Humbly pray that His Lordship excuse my young self and forbear to sentence me for contempt of court since I found myself unable to stop myself from expressing myself under my constitutionally granted freedom of speech and have nowhere made any remarks which are offensive or disparaging of this court's dignity.  (the opening sentences were inserted by google.. I SWEAR!)

The petition hearings are in open court and i'm just waiting to see what the newspapers write tomorrow about this thing after the beautiful proceedings today.

consent, sexual abuse and "love"... how does one judge?

so a senior of mine sent me a mail about a discussion regarding this Article in the Times of India..
I invite all to comment.

the text of the article is this:

‘Love not crime’, teen’s lover freed

TIMES NEWS NETWORK 

New Delhi: “The act of falling in love cannot be punished in the way other criminals are punished”. With this observation, a trial court acquitted a 22-year-old on charges of raping his 15-year-old girlfriend, although it held him guilty of kidnapping as he had not taken the consent of her parents. The girl went missing on April 1, 2010, on which her father lodged a complaint that she had been kidnapped. She, however, returned home after a week. The teenager told the court that she had gone on an “outing” to Haridwar with her lover of her own will. The court also noted that the relationship between the two was later approved by both families. Convicting Sanjay, a resident of Jahangirpuri, on charges of kidnapping, additional sessions judge Anju Bajaj Chandna sentenced him to three months in jail, but the term was set aside against the imprisonment he had already undergone during trial. “It is clear that emotion of love and affection compelled the convict to take this step wherein he failed to acknowledge the presence and sanctity of consent of the parents of the girl,” the court said.

“Sanjay is a young man and is in the process of making his career and future. In my opinion, no purpose would be served by sending him behind bars where he would be living in the company of hardened criminals.”

The judge added that the three months which Sanjay spent in jail was sufficient to teach him a 

“Sanjay is a young man and is in the process of making his career and future. In my opinion, no purpose would be served by sending him behind bars where he would be living in the company of hardened criminals.”

The judge added that the three months which Sanjay spent in jail was sufficient to teach him a “Sanjay is a young man and is in the process of making his career and future. In my opinion, no purpose would be served by sending him behind bars where he would be living in the company of hardened criminals.” The judge added that the three months which Sanjay spent in jail was sufficient to teach him a lesson.

The prosecution alleged that said that the girl returned home on April 8, 2010, when a case was registered against Sanjay that he had kidnapped her and raped her.

The girl, however, told the court that she had gone to Haridwar with Sanjay for an outing on her own free will. The court refused to accept Sanjay's submission that he had not forced the girl to accompany him, saying the minor's consent was not valid. “I am of the opinion that even if no force has been used, the offence of kidnapping would be made out,” the judge said.

The prosecution alleged that said that the girl returned home on April 8, 2010, when a case was registered against Sanjay that he had kidnapped her and raped her.

The girl, however, told the court that she had gone to Haridwar with Sanjay for an outing on her own free will. The court refused to accept Sanjay's submission that he had not forced the girl to accompany him, saying the minor's consent was not valid. “I am of the opinion that even if no force has been used, the offence of kidnapping would be made out,” the judge said. The prosecution alleged that said that the girl returned home on April 8, 2010, when a case was registered against Sanjay that he had kidnapped her and raped her. The girl, however, told the court that she had gone to Haridwar with Sanjay for an outing on her own free will. The court refused to accept Sanjay's submission that he had not forced the girl to accompany him, saying the minor's consent was not valid. “I am of the opinion that even if no force has been used, the offence of kidnapping would be made out,” the judge said.

and the text of the mail was this:



This article appeared in Times of India, Pune edition on 26th Sep, 2011? Under IPC section 375, this should be a case of child sexual abuse because the girl is 15 years old and the abuser is 22 years old. Do you think this is a justified exception since age of consent is an artificial delineation and ignores the reality that younger adolescents may also be indulging in sexual activities? Do you think the judge is being humane in not criminalizing a consensual romantic relationship since the girl has declared her consent to the sexual relationship?
Is this a dangerous precedent? Does it leave too much to the discretion of the judge? Will it lead to failure of the law to protect young children from sexual abuse? We think the article raises a lot of tricky questions related to child protection and law. 

My reply to this email was the following



If i may put forward my views..
yes, decriminalising consensual sex is the need of the hour. adolescents today are much more aware of their minds and bodies and are exposed to a lot of inputs from all over the word. However, we will be missing a very essential point if we only take into account the fact that the girl says that she gave consent out of 'love'. further, what this question here is doing is assuming that "love" essentially involves sexual relations.

while i agree with sir (a previous email from another lawyer that said that consent is important because children are often punished under such laws) that "love is a delicate and soft emotion", it is, at the end an Emotion which is very transient and can easily be confused with infatuation or plain pressure. 

I personally know of situations where school and college students feel the need to consummate their "love" because of peer pressure... "you will say yes if you love me" is a much used line and not just in movies.. friends, movies etc a encourage exploration of sexuality. I can't take a national perspective but in elite schools of Delhi, losing one's virginity before leaving school is rapidly becoming a way of adding to one's "coolness". it gets even worse in colleges where being "single' is an invitation for taunts.

moreover, for someone as young as 15, there is ample scope for confusion between "love" and hormones... at that age, 'love' usually is a overdose of hormones.

the problem is of how one defines consent... and how one judges whether the person concerned is capable of giving consent..
as for the case that was mentioned in the email, i find it impossible to believe that the 22 year old in question did not know the age of the girl he was supposedly in "love" with. Nor do i believe that this 22 year old could not have waited for the girl to be a little more mature if he really "loved" her.
the sole reason why society governs sexual relationships is because society as a whole has to bear the burden if this "love" results in the production of a child/transmission of STDs/ mental or physical abuse of the girl or boy. we are running nationwide campaigns asking parents to not get their daughters married before age 18. one major point in the campaign is that she is NOT physically ready for sexual relations or childbearing. why then are we assuming that a teenager will be aware of safe sex practices or will in a situation where they think they're "in love" even stop to think of the consequences of their actions???

a 15 year old is a class 10 student. when the education system has been made easier and external examinations done away with on the premise that these children are "unable to handle the pressure", HOW does one imagine they can handle the pressure of a relationship??

Sure, two 15 year old having consensual sex should not be punished because neither of them really know better.. but a 22 year old, asking a 15 year old for sex in a "romantic relationship"???? i fail to agree that "consent" was there in such a relationship. If one of the partners was old enough to know better, they deserve to be punished for breaking the law..
I agree that consensual sex should not be punished... But i fail to read "consent" in a relationship that is as unequal as the one described in this case.

a child is but clay.. life molds him any which way

I have been volunteering with the Juvenile Justice board's legal aid cell this past week and for the next couple of weeks.. and each day as i read more files, interact with more children, hear more of their stories and see the despair/defiance in their eyes, i come home wondering about the future of these children.. because they ARE children... 10-12 year old boys working with pickpocket gangs, 15 year olds convicted of rape, attempted murder, robbery...
and all because no one taught them better... these are children of parents who barely have time or energy to look after the child's mental and emotional welfare after working all day to ensure that there is food on the table.. most of them drop out of schools which are little more than overcrowded rooms with minimal teaching facilities.. they get introduced to substances like correction fluid, smack, ganja etc by adults/ other children who then gradually lead them to a life of crime.. t starts with petty thefts to feed the drug habit, and then graduates into grievous crimes including robbery and murder...

The law says that these children have to be treated not as criminals but as children who have lost their way.. "Juveniles in conflict with Law". there is an entire statute, the Juvenile Justice (care &protection) Act 2000 to ensure their safety and rehabilitation.. there is an elaborate system that has been envisaged on paper, that people are trying o bring into existence slowly.. legal aid, education, skill training etc are given to these children free of cost..
and yet the atmosphere in the Juvenile Justice Board room is that these children must have done something wrong coz they just belong to that kind of background.. i met a mother in the last few days who refused to take her child back from the observation home because she couldn't deal with his addiction or his constant clashes with the law.. i've seen a father ask the board to keep his son in the children's home in the hope taht his child will learn something good from the experience.. I've seen a little boy who barely look s10 years old be charged with theft, keeping stolen goods, and causing hurt with dangerous weapon... all this while the child in question stands around sullen or bewildered about what is happening

these children don't get security of a caring family, or education, or even protective friends..
thats why they take drugs and alcohol and indulge in antisocial and illegal activities.. i recently met a 15 year old drug and alcohol addict who had cut gashes on his entire arm with a blade to help him get a better high while drinking.. his father is an alcoholic and his mother passed away years ago.. he is now completely addicted coz there is no one to see him at home and there is no negative reinforcement of his criminal behaviour outside of  the court..

i wonder how different this boy's life would have been had both parents been there to help him and had actually given him a straight path....

girls shouldn't be allowed to have love marriages under age 21?????

apparently thats what a bench of the Karnataka high court thinks.. the 2 judge bench actually recommended that the parliament might consider looking into amending the Hindu marriage act to ensure that girls under 21 can't have love marriages!

“ In our opinion, the girls below the age of 21 years are not capable of forming a rational judgment as to the suitability of the boy, with whom they are in love. It is relevant to mention that those girls, who are suffering from hormonal imbalance easily fall prey to the boys and fall in love, marry and repent at leisure,” the judges said in an order last month.


Justice K Bhakthavatsala and Justice K Govindarajulu stressed that the Parliament had not taken into account love marriages when the Bill was introduced. “ Since the Hindu Marriage Act does not deal with love marriages, in our view, it is high time that the Parliament take note of the sufferings of such girls and their parents and amend the law suitably,” the judges said.

They suggested that run- away marriages of girls under 21 be declared void or voidable.

as a student of law, i'm in shock..
1)a HIGH COURT bench is recommending that the parliament consider restricting the right of an adult to choose their life?? even while allowing parent/guardian/community to force a girl under age 21 to marry someone "arranged" for her? the high court seems to have forgotten that a consenting adult is capable of contract and the law cannot interfere in such contracts except in rare cases.
2). the HIndu marriage act does not at any point define who is allowed to arrange the wedding.. all it says is that "marriage" must be duly solemnised according to ritual. Nowhere in its 29 sections does the act mention anything about "love" or "arranged" marriage. all it requires is that two adult hindus solemnise the marriage according to the rituals and customs of either party. i fail to see on what basis the court has found it self capable of making such a ridiculous recommendation for legislative change..
3) it ominously highlights the fact that even our higer judiciary is still caught in the patriarchial framework where a girl is a "possession" to be carefully tended and handed over..

what i fail to understand is that how the same judiciary who allows rapists and molesters to roam free, suddenly develops such moral principles of control when the girl decides to take matters into her own hands rahter than be made into a victim.. if u really want to recommend changes, how about a change in the definitions of bigamy, maintenence provisions for estranged/abused women, rape laws, punishments for assault...?? out of the thousands of legislatons floating around in this country, what on earth made the court take notice of the humble little HMA??

Women, jails and kanimozhi

So the media and politicians have suddenly discovered that the conditions in Indian prisons are appalling and it is not safe or comfortable for women to be in jail.. all because Tamil nadu’s little princess Kanhimozhi is currently residing in Tihar jail. Not counting the fact that she is in one of the high security ‘VIP’ areas of the jail and protected from the slightest bit of abuse or discomfort because of her high political connections, congress president Sonia Gandhi suddenly decided to declare that she is “worried” about kani’s safety in the prison…


I decided to skip the rest of the 9 ‘o clock news after 10 mins of listening to a rather nonsensical debate on NDTv abouy whether denial of bail to a woman for such a crime was a bad move on the court’s part.. politician Renuka Chowdhry, Sadia Dehlvi, activist Madhu Kishwar and senior advocate KTS Tulsi were the talking heads on the panel tonight.. thank god for the latter two because the comments made by the first two put me in serious danger of getting a heart attack due to sheer indignation..

Comments like “it’s not safe for women to be in jail”, “the court is obliged by law to give bail to women” and the gem of the lot “well there are other women in jail but they are there for more serious crimes, kanimozhi has only a charge of corruption against her”

What these people did not seem to get was that they are simply reinforcing the gender stereotypes by insisting that the sex of the accused should be more important than the crime committed.. The enormity of what kanimozhi is involved in was dismissed in the interest of faux- sympathy for jailed women..

even more annoying was the fact that they seemed entirely oblivious to the fact that there is no law that makes it compulsory or even obligatory for a court to release a woman on bail.. What S.437 of the CrPC states is simply that the court “may” direct that the person accused of a crime which is punishable by life imprisonment or death penalty be given bail if such a person is under age 16 or a woman or is sick or infirm.

There’s nothing in any law in the country that says that women cannot or should not be thrown in jail if they’ve done something to deserve it.. and the scam that kani is involved in is much more dangerous for india’s security than any murder or terrorist activity.

In 1973, justice Krishna Iyer had clearly said that the Supreme Court considered economic crimes to be detrimental to the security of the state, and a person accused of an economic crime did not deserve gentle treatment. (sure he said this in respect of probation given to a smuggler, but the essence of the sentiment remains the same)

Apart from the obvious legal issues I may have with the statements made on tv today, they indicate a deeper malaise. That is the depiction of women as frail creatures who need special protection and are too delicate to even be given the correct punishment of they commit crime. It’s this faux-protectionist attitude, smacking of chauvinism that really strikes a blow against the self esteem of every woman who has wanted to be taken seriously.

How is it that supposedly responsible and liberated politicians and social activists can proclaim on national television that women are too vulnerable to be punished? Renuka Chowdhury today brushed aside Madhu Kishwar’s comment about how more than one woman politician has undergone incarceration in the past. She even managed to keep a straight face as she claimed that Sadhvi Pragya, currently in jail for involvement in terrorist activities, was fair game because terrorism was a far more serious crime.

I said a rather loud thank you to Nidhi razdaan , the anchor, for pointing out the fact that sexist arguments to demand protection for a woman ultimately caused incalculable harm to women’s rights movements.

Ironically, she quoted another UPA ally Mamata Bannerjee who had proclaimed during one of her endless protests that she stood for the causes she espoused and demanding special treatment as a woman was an insult to her dignity.

I totally agree.

Aruna and the right to die with Dignity

The Supreme Court of India today gave a judgment today that is being hailed as a 'landmark'.. The judgment allows for passive Euthanasia i.e withholding medical treatment or food in extreme cases where a patient is in a 'Permanent Vegetative State'. Aruna Shanbaug, the victim in the case, was brutally sodomized and then strangled 37 years ago and has been in a 'vegetative state' since then. She cannot move or express herself or so much as swallow properly, she's been taken care of by the medical staff at a hospital in Bombay for all these years.

This is what the medical experts and the court have said about Aruna : (full text of judgment )

The court has given certain criteria to decide whether passive euthanasia may be allowed. that includes the opinion of the team of doctors tending to the patient as well as the opinion of a panel of doctors created by the high court of the state, the judgment also says that the relatives or next friends of the patient must file a plea for the approval of withdrawal of treatment with the High court before such an act can be undertaken.

the judgment has stirred a hornet's nest of debate, both legal and moral. the crux lies in the question whether anyone has the right to decide whether a person may live, and whether current medical standards can trump hope of future miracles.. also involved is the question whether this decision making power may be misused by unscrouplous relatives and easily bought doctors to deny treatment to people who wouldn't legitimately come within the ambit of 'permanent vegetative state' or a 'coma'.
most importantly, the judgment makes a clear distinction between brain death, coma and Permanent vegetative state.

while i'm in no position to make any kind of informed comment on the judgment itself, there are quite a lot of unnerving things about the entire euthanasia debate, least of all being, what would I do if faced with such a situation.. was talking to a friend who raised this question, and my head has been spinning ever since..
also a question is nagging me, through this whole moralistic posturing thats currently on tv, Pinky Virani, the author who wrote Aruna's biography and filed the plea for euthanasia made this comment "i would like everyone in this country to think about what they would want for themselves if they were in Aruna's situation."

at the end is one last nagging question... i was reading the wikipedia page about the case and what i read was that the man who brutally sodomised and strangled her was actually tried for assault and robbery and not for rape or unnatural sexual offence because the doctors of the hospital, and mind you this is the same hospital where she has been staying for the last 37 years, did not report the sexual assault to 'spare her shame'. i'm wondering if that is the reason the hospital authorities have continued to care for her all these years.. after all, she WAS assaulted while on duty in the hospital and was denied justice coz of the misplaced sense of 'honour' of the doctors..

i can't seem to actually WRITE anything about this case though i've been trying for hours.. there are so many dimensions to it.. i cannot decide whether i'm writing as a law student, or a medical layman, or as a woman or as a person who has watched loved ones waste away with disease and dealt with the aftermath...

i was asked this once.. how would you want to die? waste away in old age/disease or die with dignity /in a blaze of glory while still having all your faculties and strength..
i still don't know the answer i'd choose...