Of Cabbages and Kings

June 10, 2010

Bhopal

India is outraged about the injustice of the recent Bhopal tragedy related judgment this week. I gave up on the Indian news channels years ago but I am pretty certain that if I ever did get round to gritting my teeth and switching the television on, I would see Barkha Dutt and her colleagues all breathless and worked up about how the judiciary has wronged the Bhopal victims. And they should be. The senior management of the company that killed 25,000 people (and the numbers will grow as long as the poison remains in the earth and water in the region) gets a measly 2 years in prison. Chairman Mr. Mahindra seems to have had a successful career and is CEO of a Mahindra company. For an amount which is probably far less than their fortnightly expenditure, they are all out on bail.

The man primarily responsible? Warren Anderson is living it up in his $900,000 home in the Hamptons and is whizzing around in a Cadillac. He does not like being asked about the Bhopal victims.

Just so we’re clear, the primary damage in this case was done over twenty years ago. But both then and now, this case says terrible terrible things about the world. Apart from the corruption or utter foolishness of Indian politicians and the lack of courage shown by the Supreme Court (judge who was later rewarded with a glamourous post-retirement positions) is the utter and complete callousness demonstrated by the people who were, and still are, in a position to do something. Shame on you Mr. Obama. And shame on you, ‘free’ American press.

Someone told me that all this sordid Bhopal stuff isn’t really Obama’s problem, and that he is morally justified in shielding mass murderer Anderson. When educated people start talking about 25,000 deaths in terms of bureaucratic errors, it gets fairly apparent that the education system, the media all other institutions that influence public morality are beginning to putrefy.

Concentration camps were everybody’s problem. Slavery was everybody’s problem. Genocide is everybody’s problem. Terrorism is everybody’s problem. Mass killing of human beings is and has always been everybody’s problem.

This is where I would usually start talking about the UN Charter, human rights treaties, extradition and suchlike. All of that, though it does exist, just builds on an idea. And that idea was best expressed by John Donne:

No man is an island,
Entire of itself.
Each is a piece of the continent,
A part of the main.
If a clod be washed away by the sea,
Europe is the less.
As well as if a promontory were.
As well as if a manner of thine own
Or of thine friend’s were.
Each man’s death diminishes me,
For I am involved in mankind.
Therefore, send not to know
For whom the bell tolls,
It tolls for thee

January 6, 2009

Lawyers lawyers

Filed under: Law — Tags: , — Chinmayi @ 6:42 pm

This is what I do when I have a tough essay to write on a tight deadline. Here’s what emerged after the last half hour’s wandering around the internet:

“Lawyers should never marry other lawyers. This is called inbreeding, from which comes idiot children and more lawyers.” – from Adam’s Rib 

“Of course I’ve got lawyers. They are like nuclear weapons: I’ve got em coz everyone else has. But as soon as you use them they screw everything up.” -from Other People’s Money

“Lawyers are the only persons in whom ignorance of the law is not punished”- Jeremy Bentham

To some lawyers all facts are created equal” Felix Frankfurter

“I get paid for seeing that my clients have every break the law allows. I have knowingly defended a number of guilty men. But the guilty never escape unscathed. My fees are sufficient punishment for anyone” – F. Lee Bailey

December 28, 2008

Why defend a terrorist

Filed under: Law — Tags: , , , , , , — Chinmayi @ 12:59 am

The reasoning is similar to why a murderer is entitled to a defence lawyer. With people using brute force to try and prevent defence lawyers from representing the captured Kasab, the issue looms its head again. And again, I offer you borrowed words:

” So important is the right of an accused to have the services of a lawyer that the Constitution-makers were not satisfied with the rights created by the successive Codes of Criminal Procedure. The Constitution-makers introduced it in the chapter on Fundamental Rights so that no tyrannical regime could curtail or destroy it. Article 22 declares that no accused shall be denied the right to consult and be defended by a legal practitioner of his choice…A lawyer worthy of his robes has no option in such a situation…

‘From the moment that any advocate can be permitted to say that he will or will not stand between the Crown and the subject arraigned in the court where he daily sits to practice, from that moment the liberties of England are at an end. If the advocate refuses to defend from what he may think of the charge or of the defence, he assumes the character of the Judge; nay, he assumes it before the hour of judgement; and in proportion to his rank and reputation puts the heavy influence of perhaps a mistaken opinion into the scale against the accused in whose favour the benevolent principle of English law makes all assumptions, and which commands the very Judge to be his Counsel’ [Quoting Erskine]”

From Witch? Yes. Hunt? No by Ram Jethmalani

December 27, 2008

Confessions

Filed under: Across the Universe, Law — Tags: , , , , , — Chinmayi @ 1:24 am

The better half and I were discussing the non-exclusiveness of our profession recently. People leave doctors to medicine, researchers to biotechnology and engineers to electronics but everybody has an opinion on the law. While this is certainly a desirable tendency in a democracy, the opinions come shaded, colour-coded almost, according to how informed the opiner is. And this applies to both lawyers and “lay-people” (the nasty patronising epithet that lawyers are taught to use for non-lawyers in law schools so they can feel a little more special) – a badly informed lawyer will come up with exactly the same kind of silly nonsense as anybody else…which does the beg the question of what the lot of us spend all our time studying but I’m going to swerve around that little issue today and move on to my pitch for the day.

One very popular demand in post-attack-on-Mumbai India is for admission of confessions as evidence. A confession is not admissable as evidence in India* and everybody is upset that although the media has tried and convicted the sole captured terrorist avaliable after the attacks, and his confession has been publicised, the confession cannot be submitted to the judiciary. A grand and colourful contradiction is emerging as a result – on one hand, everybody is grumbling about the ineptness of our investigation agencies and on the other is encouraging this ineptness by insisting that they should be permit to toture so-called confessions out of random people and admit these documents as evidence in courts in lieu of doing the spade work to come up with anything else at all that points towards the guilt of the accused. While I always thought the non-admissability of confessions as an important safeguard against abuse of the criminal justice system, I did not know of its history until I read ‘Under pain of death‘.

That people are thinking about the law is an encouraging sign for the democracy. That they are thinking of it in the silly dramatic and superficial way that the media encourages – that your opinion matters but you needn’t trouble to work enough to make it an educated opinion – is not. In the spirit of encouranging opinions – educated opinion – I offer you ‘Under pain of death‘ as something to mull over before leaping into the Confessions As Evidence debate.

*except for parts pertaining to physical evidence that was discovered as a result of the confession. So if a confession mentions the location of the murder weapon, and the weapon is found at that location, that part of the confession would be admissable, but a confession that simply admits to the murder would not count for anything.

September 26, 2008

Judging 377

Most progressive countries in the world have reached a stage where they have formalised gay unions and given homosexual couples most of the rights that heterosexual couples get from marriage.

In India, we are far far behind. Section 377 of the Indian Penal Code has long been used to arrest and harass homosexuals. The words used in Section 377 are:

 

Section 377. Unnatural offences

Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal, shall be punished with imprisonment for life, or with imprisonment of either description for term which may extend to ten years, and shall also be liable to fine.
Explanation. -Penetration is sufficient to constitute the carnal intercourse necessary to the offence described in this section.

It is odd. If you just read the text of section 377, you may not find anything amiss. “Against the order of nature’ could mean anything – it would depend on what you construe as the order of nature. So to me for instance, intercourse between consenting homosexual couples would be entirely within the order of nature (as opposed to marital rape which is not recognised as rape in the eyes of Indian law).  However, as all lawyers and many other know, statutes are rarely restricted to their actual text and they come with all the baggage heaped onto them from years of interpretation by the judiciary. And the Indian Judiciary has managed to stuff anal, oral and thigh sex into its definition of acts against the order of nature.*

In 2001, the Naz Foundation filed a writ petition in the Delhi High Court challenging the constitutional validity of secton 377 as it currently stands, and asking that the section be read so as not to prohibit homosexual relationships. The case has come up for hearing recently. The home ministry is insisting that one of major reasons against decriminalising homosexuality is that such a move would lead a rise in HIV and AIDS cases. This is a pretty funny sort of stand to take, especially given that the health ministry is in favour of decriminalisation for the same reason – it would reduce vulnerability to HIV and AIDS

Fortunately, the judges seem to be responding well to the arguments raised by the Naz Foundation in the petition. Perhaps the High Court will have the good sense to do something about this utterly ridiculous law after all…let us keep our fingers crossed.

Aside: Those interested in how irresponsible the media can get might get some pleasure out of comparing the CNN-IBN report of today’s hearing with Siddharth Narrain excellent piece (in the Indian Express)

* The Supreme Court seems to have defined intercourse in the order of nature as vaginal sex and nothing else. I’m going to have to check up on this but assuming that this is so, all non vaginal sex is currently criminal and punishable under law! So there you go, all you heterosexual followers of Vatsayana.

September 10, 2008

The Fundamentalist Church of Jesus Christ of the Latter Day Saints

Filed under: Across the Universe, Law — Tags: , , , , , — Chinmayi @ 9:24 pm

I was horrified when I read this article about a woman who had been married when she was fourteen and systematically raped by her husband after that. At least the man responsible (the head of the Fundamentalist Church of Jesus Christ of the Latter Day Saints) was convicted.

In India of course, putting a stop to the practice of child marriage still remains far off. Although most reports do talk of measures against child marriage, few seem to discuss the trauma that the child-bride must experience if she was sent off to live with (and work like a slave for) a strange family and to be raped regularly amongst the strangers. There are parts of the country where (women made scarce thanks to decades of regular female foeticide by the community) a woman who marries into a family is expected to be a sex slave for all the males of the family. Marital rape has not yet been recognised as a crime in India. Punishments for those who effect child marriages are hardly a deterrent and the marriages are usually valid in the eyes of the law.

Imagine where that leaves an Indian girl with no education or exposure to the world, who has been sent off to be raped for the rest of her life. The little that the law might offer her, she will not know about.

Update: A detailed article on how scarcity of girls has led to polyandry and desperate measures taken to procure wives. Note that this has still not led to women being treated any better. ( via Barbara Raisbeck who has also posted on the subject).

July 29, 2008

Jurisdiction that covers the Gods and the Animals

Filed under: Across the Universe, Law — Tags: , , — Chinmayi @ 8:12 pm

It is a pity that nobody has written a cheeky guide to the Indian Judiciary. Given that the building and breaking of bridges by the Gods is a question of fact dscussed in the Supreme Court of India, and that a dog has been ordered to appear before a magistrate, I think a cheeky guide is more than due.

July 26, 2008

Can Somnath Chatterjee continue to be a member of parliament?

Filed under: Law, Made up theories — Tags: , , — Chinmayi @ 6:15 pm

Today, I had tea with two old friends and an old acquaintance. “I hear he can be Speaker, said the acquaintance (somebody I was briefly a little besotted with when I was a girl), but can he continue to be a member of parliament?”.

I am ashamed to say that I had not read the tenth schedule of the Constitution at the time and so had no clue at all.
Read it and you will see that Somnath Chatterjee neither joined another party nor voted contrary its instructions. So he can’t be be disqualified under the tenth schedule.

He can be removed as speaker only in accordance with the following:

94. Vacation and resignation of, and removal from, the offices of Speaker and Deputy Speaker.— A member holding office as Speaker or Deputy Speaker of the House of the People—

(a) shall vacate his office if he ceases to be a member of the House of the People;

(b) may at any time, by writing under his hand addressed, if such member is the Speaker, to the Deputy Speaker, and if such member is the Deputy Speaker, to the Speaker, resign his office; and

(c) may be removed from his office by a resolution of the House of the People passed by a majority of all the then members of the House:

Provided that no resolution for the purpose of clause (c) shall be moved unless at least fourteen days’ notice has been given of the intention to move the resolution:

Provided further that, whenever the House of the People is dissolved, the Speaker shall not vacate his office until immediately before the first meeting of the House of the People after the dissolution

September 17, 2007

Microsoft lost antitrust appeal

Filed under: Across the Universe, announcements, I saw this, Law — Chinmayi @ 5:58 pm

Yup! This calls for some probing. Can’t believe I haven’t been following this stuff!

News from here.

August 22, 2007

Converting the unconverted

Filed under: Law — Chinmayi @ 6:40 pm

is never easy. Especially when you believe in something so powerfully that you want to scream it from the rooftops and write it across the sky. I imagine that it takes generous portions of tact and subtlety to say what you have to say like Kelly Anne More has, to ensure that ‘the other camp’ continues listening until you are done talking. One more reason that I love being a lawyer…I give you ‘Take Al Qaeda to Court’ – Ms. Moore’s argument for rule of law in terrorism related trials.

Excerpts:

“As a former federal prosecutor who worked on terrorism-related cases, I have had firsthand experience doing just what proponents of a national-security court say is impossible. ”

“Besides terrorists, the Justice Department has successfully prosecuted Ku Klux Klan bombers, members of violent groups like the Weathermen in the 1960s and ’70s, and members of Italian organized crime in the ’80s and ’90s. ”

“Many people around the world have come to question America’s commitment to the rule of law. There are few places in the world where that principle is more hallowed than in the United States federal courts. The best course of action now, in dealing with terrorism suspects, is to use these courts — the keystone of American jurisprudence — and show the world that America can protect itself while it respects the rule of law. “

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