Crimes against women

Dear Noopur,
I have read your latest article in Newslaundry. I appreciate your sentiments, and with respect I share them. Rape and other crimes against women are a disgrace to a society and deserve harsh punishment.

In my judgment in the Supreme Court in Satya Narain Tiwari vs. State of UP (which can be seen online) I said: “The hallmark of a healthy society is the respect it shows to women. Indian society has become a sick society”. In that case, I had said that death penalty should be given in cases of dowry deaths. In our country, young married women are often killed – because they did not bring enough dowry – by pouring kerosene on them and setting them on fire or hanging/strangulating them. Our courts have many such cases. This is a barbaric practice, and no mercy should be shown to such people.

In Bhagwan Das Vs. State (NCT) of Delhi (see online), I said that death penalty should be given for “honour” killing of young couples who are killed by their relatives or caste panchayats because their marriage was inter-caste or inter-religious, or was disapproved of for some other reason.

In my opinion, crimes against women are not ordinary crimes, they are social crimes. They disrupt the entire social fabric, and hence call for harsh punishment.

When a man respects his wife, the child of such a couple sees that justice was done to his mother, who was physically weaker than his father. Hence such a child, when he grows up becomes a brave fighter against injustice. But if he sees his father beating or otherwise mistreating his mother he thinks that oppression and ill-treatment of the weaker is the normal way of functioning, and hence when he grows up he becomes an oppressor or a coward. A society in which a large number of women are maltreated becomes a sick society, as Indian society has become.

I am therefore entirely with you in condemning crimes against women, including rape.

However, what I wish to submit is that such crimes cannot be done away with without destroying the feudal remnants and practices persisting in our society, which are still widespread. What else is caste-ism and communalism? To do away with feudal thinking and practices requires a long period of struggle and patient persuasion among our people by the enlightened, modern minded, section of our society, because most men in India even today regard women as inferior (although IQ tests in psychology have shown that the IQ of an average woman is the same as that of an average man). This means that the scientific outlook and scientific temper must be spread to every nook and corner of our country.

You seem to think that since I have mentioned poverty, malnutrition, unemployment, price rise, lack of healthcare, etc, I am trying to ignore or undermine the seriousness of rape. That is entirely incorrect. I have always condemned crimes against women including rape.

What I am saying is that crimes against women will continue (despite all the hue and cry raised against it and despite making harsh laws against it) as long as feudal remnants and feudal thinking persists in society. In feudal society, women are regarded as inferior to men, and hence ill treatment of women is regarded almost like ill-treatment of animals. That is, a matter of not much importance.

Hence the issue of rape and other crimes against women cannot be considered or resolved in isolation. It can be resolved only by destroying the feudal elements in our society and by spreading scientific and rational thinking widely. This in turn requires a long period of struggle and patient persuasion of the masses by the enlightened sections of our society, which results in fundamental changes in the social system in our country. Without this you can keep shouting and screaming against rape or other crimes against women, but it will be of no avail.

Please forgive me for giving a response to your letter in this form, instead of replying point-wise as you had demanded.

Justice Katju

A dirty job, but somebody's got to do it

The Bar Association of Saket's s resolution that none of its lawyers will defend the accused in the Delhi gangrape case is not only illegal but also against all traditions of the bar and professional ethics.

As observed in AS Mohammed Rafi vs State of Tamil Nadu, AIR 2011 SC 308.

"Every person, however wicked, depraved, or repulsive he may be regarded by society has aright to be defended in a court of law, and correspondingly it is the duty of the lawyer to defend him."

When the great revolutionary writer Thomas Paine was tried for treason in England in 1792 for writing his famous pamphlet titled 'The Rights of Man' in defence of the French Revolution, the great advocate Thomas Erskine was briefed to defend him. Erskine was at that time the Attorney General for the Prince of Wales and he was warned that if he accepted the brief, he would be dismissed from office. Undeterred, Erskine accepted the brief and was dismissed from office.

However, his immortal words in this connection stand out as a shining light even today: "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 court where he daily sits to practise, 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 the judgment; 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 principles of English law make all assumptions, and which commands the very Judge to be his Counsel".

Indian lawyers have followed this great tradition. The revolutionaries in Bengal during British rule were defended by our lawyers, the Indian communists were defended in the Meerut conspiracy case, Razakars of Hyderabad were defended by our lawyers, Sheikh Abdullah and his co-accused were defended by them, and so were the alleged assassins of Mahatma Gandhi and Indira Gandhi.

In recent times, Binayak Sen has been defended and so was 26/11 terrorist Ajmal Kasab. No Indian lawyer of repute has ever shirked responsibility on the ground that it will make him unpopular or that it is personally dangerous for him to do so. It was in this great tradition that the eminent Bombay High Court lawyer Bhulabhai Desai defended the accused in the INA trials in the Red Fort at Delhi (November 1945-May 1946).

In this connection reference may be made to the legendary American lawyer, Clarence Darrow, 1857-1938 (see his biography, Attorney for the Damned), who took up cases of persons regarded as vile, depraved and loathsome by society for instance, brutal killers, terrorists, etc, whose brief no other lawyer would touch because he believed that everyone had a right to be defended.

Article 22(1) of the Constitution states: "No person who is arrested shall be detained in custody without being informed, as soon as may be, of the grounds for such arrest nor shall he be denied the right to consult, and to be defended by, a legal practitioner of his choice".

Chapter II of the Rules framed by the Bar Council of India states: "An advocate is bound to accept any brief in the courts or tribunals or before any other authorities in or before which he proposes to practise at a fee consistent with his standing at the bar and the nature of the case. Special circumstances may justify his refusal to accept a particular brief."

Professional ethics require that a lawyer cannot refuse a brief, provided a client is willing to pay his fee, and the lawyer is not otherwise engaged. Hence, the action of any Bar Association in passing a resolution that none of its members will appear for a particular accused, whether on the ground that he is a suspected terrorist, rapist, mass murderer, etc, is against all norms of the Constitution, and professional ethics. It is against the great traditions of the bar which has always stood up for defending persons accused of a crime. Such a resolution is, in fact, a disgrace to the legal community. 

All such resolutions of Bar associations in India are null and void and the right-minded lawyers should ignore and defy such resolutions if they want democracy and rule of law to be upheld in this country.

( Markandey Katju is chairman, Press Council of India, and former judge, Supreme Court of India )

  Published in Hindustan Times on 01/01/2013

Why the middle class is at the barricades

Corruption yesterday, sexual violence today, the middle class is protesting because its real income has been eroded

The agitation in Delhi and many other parts of the country over the recent gangrape of a young woman (the victim unfortunately died), reminds me of the Anna Hazare-led agitation against corruption. Just as the latter fizzled out in a few weeks’ time, I predict that this agitation too will soon fizzle out. And just as the Hazare mobilisation has not led to the reduction of corruption in the country by even 0.1 per cent, so also the present agitation will not lead to anything.

Of course, I would like to see the culprits severely punished under the law. What I have to say, however, is this. First, serious problems are not solved by emotional outbursts such as we are seeing (hyped, no doubt, by many of our TV channels), or even by amendment of the law (as some are advocating), but by great social change. Second, gangrape is not the only serious issue before the nation, as some people seem to be contending. There are several equally, if not more, serious issues facing the nation. For example, massive poverty, high rates of child malnutrition and farmer suicide, abysmal healthcare and education for our masses, massive unemployment, skyrocketing prices, etc. Our TRP-led media does not hype these equally, if not more, serious issues and we seldom see huge crowds of middle-class people at Jantar Mantar or on Ramlila Grounds or at India Gate agitating against these issues.

In my opinion, however, the Hazare agitation and the present agitation against the gangrape are symptomatic of a deeper malady in the country, and it is this: there is great discontent in our middle classes, which is making them go to the streets. What the cause of this deep discontent is, is what has to be examined.

India has a population of about 1.2 billion, of which 80 per cent or so are poor. However, there is also a middle class of about 15-20 per cent of the population, which emerged after Independence (due to a certain degree of industrialisation) and which enjoys a higher standard of living and higher incomes than the 80 per cent poor in our country. It is this middle class that is responsible for the relative stability of India after Independence (there was no civil war in India, for example). This middle class provided a market for our industries, which in turn provided employment to many of our youth.

However, over the last few years, real income and consequently the standard of living of the middle class has rapidly eroded due to steep price rise, worldwide recession (which has impacted India too, resulting in rise in unemployment), etc. Suppose someone was earning Rs 20,000 per month. If prices double, his real income becomes Rs 10,000, though ostensibly he appears to be still earning Rs 20,000 (because income is relative to the level of prices).

This is the real cause of the discontent in the middle class in India and it is the real factor driving them to the streets. Hence, if the apparent issue behind the recent agitations had not been corruption or gangrape (and I agree these are serious issues), there would have been some other serious issue (and there are dozens of other serious issues in our country) on which some of our middle classes would have taken to the streets.

It is this deep discontent in our middle classes (for the reasons I have mentioned) that is converting the period of stability India has enjoyed since Independence to a period of instability. 

If the people at the helm of affairs do not understand and seriously address this malady, I am afraid India is entering a prolonged period of chaos and anarchy.

 ( The writer, a former judge of the Supreme Court, is chairman of the Press Council of India. )

Published in The Indian EXPRESS on 07/01/2013.

Press Note : Regarding attack on journalists in Delhi

 I strongly condemn the recent attack on journalists by the police in Delhi during the recent protests against gangrape at India Gate and Rajpath. The journalists were only covering the events, which it is their fundamental right under the Constitution to do, and in fact that is their duty to the public. Many journalists were targeted by the police, their cameras broken, and many were physically assaulted. This a flagrant attack on democracy in the country, and it is not an isolated incident. Many such incidents are coming to my knowledge from different parts of the country.

Journalists act as agents of the people so that people get correct information about important events and thereby can form rational opinions, which is a sine qua non in a democracy. It is reported that some people in the crowds threw stones at the police, which was of course objectionable. But surely journalists did not throw stones. The police cannot take the plea that they could not distinguish between journalists and non journalists because the journalist were carrying cameras and other equipment which made them clearly distinguishable.

The governments of the Union and all states are therefore called upon to severely punish the police personnel involved in the attacks on journalists, and ensure that such  incidents do not recur in future, failing which it will be deemed that they are unable to run the government in accordance with the Constitution, and then the legal consequences in Articles 355 and 356 may follow. 

All medical aid to the journalists should also be given immediately.

    Justice Katju

Chairman, Press Council of India