Wednesday, February 22, 2017

Dirty things - A clarification. And some more brilliance

In my previous post, I had made clear my disgust of a Judgment passed by the Her Ladyship Sadhna Jadhav of Bombay High Court on 16th January 2017. She had recorded in her Judgment that a minor girl used to do “dirty things.”

It is with much relief and happiness that now write that following an Application by the Maharashtra State Government Her Ladyship has had to correct her Judgment. What gladdens me is that someone in the deep dark recesses of the Ministry of Justice has a brain, a spine and a sense of right and wrong. Whoever you are, Sir/Madam, take a bow. Well done indeed.

You can read the clarification here. Please do note how the cowardly and careless Judge has very conveniently thrown Dr Surekha Bajaj the supervisor of the home where the minor child was under the bus. Anyway, some honor and dignity has been restored, albeit, much after the horse has bolted.

Our Lady High Court Judges are a class apart. Not to be outdone we have a howler from Her Ladyship Justice Mrs. Mridula Bhatkar. Permit me to give you some background on Her Ladyship. The Bombay High Court website has information which I am extracting for you. Her Ladyship did her Bachelors of Arts in Journalism. Then Her Ladyship did her Law. After being appointed a Judge, Her Ladyship “was selected to participate in the Judicial Training Programme in Gender and Law at the University of Warwick, Coventry, UK meant for Indian Judicial Officers under the Indo-British Judicial Sensitization programme conducted by the British Council in Conjunation [sic] with National Judicial Academy.” She has “conducted workshops/Colloquia as Resource Person/Trainer for Judges and Lawyers on Gender Laws.”

Yes dear readers the Bombay High Court website uses the word “Conjunation”. I do not know what the word means. The Almighty Google does not have an answer either.

Anyway, Her Ladyship has pronounced Judgment on an application for bail by three men. The facts are simple and as old as the hills.You could read the entire Judgment here.

Abhinaya and Survivor [since you cannot call them Victims] were colleagues in an IT company in Pune. An office picnic was organized. Prior to the picnic, Abhinaya and Survivor went for a drink to a place referred to in the Judgment as Hotel Irish (chilly). I kid you not! This was in the afternoon. But, hold on, this gets funnier. Abhinaya has a Tuborg beer and Survivor asks for iced tea. She obviously likes the iced tea so she has 4. Soon Survivor says she is dizzy and falls unconscious. She wakes up at 12.30 am, or, in military parlance, 0030 hrs and finds that she is at Abhinaya's flat with 2 other men and another female colleague Florentina and

her leggings were not worn inside out. Her nicker and slip were lying somewhere else. Her orange colour kurta was torn on one side. She had severe pain in abdomen, lumber portion and in private part.”  

Yes folks this is extracted from the Judgment of Her Ladyship Mrs. Mridula Bhatkar, trained in gender and law in the UK. Yes, her leggings were NOT worn inside out. When you steal something are you a Nicker? What, for fucks sake is a “Nicker”??? Almighty Google tells me a Nicker is a soft whinnying sound made by a horse. The word is obviously “knicker” but who cares, who knows – certainly not a female judge educated in the UK.

Okay, I may have got a bit carried away, let us get back to the story. Survivor claimed she was raped by Abhinaya. It turns out that Survivor did not drink iced tea but, hold your breath “four long cocktail Iceland ice tea”. Yep folks that phrase is repeatedly used in Her Ladyships Judgment - long cocktail Iceland ice tea.

In the testimony given by the waiter at Hotel Irish (chilly) the fact that Survivor had four of these delicious cocktails was confirmed. Now, for those of you who may not have ever drunk a Long Island Ice Tea, I assure you, it is lethal. Correctly made a single drink is 120 mls or two large pegs of 5 white spirits – Gin, Vodka, Tequila, White Rum and Cointreau. This is topped with Coke. The drink is really delicious, but, lethal. I once had two beers and in a fit of excitement and camaraderie with HRH the Queen of Kutch’s sister, ordered one at Toto’s. I was as the phrase goes “ludak-ing”. I staggered home, like Mr. M K Gandhi, with my hands on the shoulders of two ladies. Totally inappropriate analogy, but you get the picture, vividly. I hope. Survivor had 4 long cocktail Iceland ice tea. She would have been more than “ludak-ing”.

Of course, Abhinaya said that sex was consensual, and that Survivor was not averse to drinking. A medical test was conducted on Survivor which revealed (1) that there was penetrative sex and (2) there was no alcohol in her blood. Yep, no alcohol in her blood.

You know what Her Ladyship decided?

She held that consent obtained when the Survivor was intoxicated is not consent, as Survivor is not in a proper state of mind. Hence Abhinaya should be denied bail as he was prima facie guilty of rape. I know that the laws relating to rape have been amended specifically to provide that when drunk you cannot give consent. Frankly, I agree with that. However, the medical report states that a blood sample taken 12 hours after consuming 4 long cocktail Iceland ice tea reveals no alcohol in the bloodstream.

All I can say after all this is, I cannot imagine what would be our state if our Judges did not have the privilege of training in the UK. Do Judges read what they have dictated?

Wednesday, February 15, 2017

Rape, pre-marital sex and disproportionate assets! Our egotistical Courts

They say that one of the pillars of Democracy is the Judiciary. They say that in India we have a vibrant, free and courageous Judiciary. They say that these qualities of our Judiciary are what differentiates us from China, and, I guess, Russia and a whole lot of African Nations. All these statements are not entirely wrong.

Over the past few weeks I have been getting extremely disturbed and agitated at how our honorable Judiciary has been going about doing its job. The trigger for this post has been the massive 570 page Supreme Court judgment in the Shashikala/J Jayalalitha disproportionate assets case.

But first a quotation.

“There are two circumstances that lead to arrogance: one is when you're wrong and you can't face it; the other is when you're right and nobody else can face it.” 

A few days ago I came across a Judgment passed by the Her Ladyship Sadhna Jadhav of Bombay High Court on 16th January 2017. The facts, as I can understand them after reading the extremely poorly worded Judgment run along these lines. An abandoned orphaned girl aged 9 was placed in a protective home. Subsequently, Dominic Rodrigues and his wife adopted the child. The girl alleged that she was sexually abused by her adoptive father Dominic Rodrigues and in 2015 the child, still a minor, was being looked after by an NGO. The NGO filed a complaint against Dominic Rodrigues who was arrested. An application was made for bail. Various evidence was presented, one of which was a report by the supervisor of the protective home. The supervisor had asked the child to write her life story which the child did. The Judge, records in her judgment

“Perused the statement written in the handwriting of the prosecutrix [that is the child]. She has admitted that she used to do all dirty things. It appears that she was inherently abnormal and had sexual instincts right from her childhood, in all probabilities, because of the environment and atmosphere where she lived and the conduct of her deceased mother.”

Please do note the pathetic language from purely an “English” perspective. Please do now note the absolutely depraved mind of the Judge dictating the order. Could not this have been better worded? This is a Lady Judge of the Bombay High Court in 2017. This is a Judge sitting in Mumbai, not a Judge of the Bombay High Court sitting in Nagpur or other town. “Dirty things”! Is this what a High Court Judge should be recording in a Judgment?

Do you know the tragedy that follows? This is the next sentence of the Judgment

“Be that as it may, on the date of lodging of the report, the victim was about 17 years old. She had not disclosed the act of the applicant to the Supervisor of the protective home and has complained about it after a considerable lapse of time. The statement of the victim on the basis of which crime is registered, does not appear to be truthful and therefore, does not inspire confidence of this Court. The applicant has been in jail for almost 15 months.”

“Be that as it may.” The Judge has the audacity to write that? If that was so unimportant i.e. the “dirty things” that the child did, then why record them. Dominic Rodrigues the accused was set free on bail. He was freed not because the child “did dirty things” but because the complaint was lodged late, and the victim i.e. the child did not appear to be truthful.

So dear readers, I ask, if Dominic Rodrigues was to be released on bail, why bring on record a handwritten note by a child, a minor child? Is this the quality of justice we have to expect? Just thoughtless, cruel and egotistical are the words that come to mind. Why does the child have to painted with such a terrible brush?

Does it not make your blood boil?

You could read the entire Judgement here.

Then there is this other gem from the Kerala High Court. This is a Judgment dated 13th January 2017 by His Honor Justice P Ubaid. The facts here are as simple and uncomplicated. Frankly, this Judgment is important as it follows the new trend of recognizing that pre-marital sex between two consenting adults does not amount to rape if a promise to marry is broken.

Following the amendment to the Indian Penal Code, the definition of rape has been expanded by widening the definition of “consent” as an ingredient in rape. Lack of consent tantamounts to rape. A slew of cases came to be filed alleging that consent was obtained by promising marriage and by reneging on the promise, the consent was obtained fraudulently. Hence, in these circumstances pre-marital sex was without consent and therefore rape.

31 year old Ratheesh had pre-marital sex on several occasions at several places with 27 year old Ms. X - who has mercifully not been named in the Judgment. None of this is disputed. After perusing several emails and letters brought on record the Judge holds that

“Even a common lady or an uneducated lady cannot be deceived more than once or twice on a promise of marriage. Ms. X is a well-educated lady having a degree in Engineering. It is quite unbelievable that she could be easily deceived on a marriage promise on many occasions.”

Honestly, I applaud His Honor in using that logic to acquit Ratheesh. However, the Judge could not stop there. This is what he says twice in his Judgment

“I am well satisfied by the Ext.D1 and D4 documents that if at all the prosecutrix had any sexual union with the accused once, or more than once, it was with her full consent, as part of her unholy union with him.”

“Unholy union”? Really? Are you serious? Is His Honour a Judge, or a Priest or a parent? Folks, please remember we are in 2017! Why do Judges have to record such things, use such words and regress to antediluvian standards? Is it just ego, to place a mark on everything you do? To express an opinion on everything?

You could read the entire Judgement here.

Now coming to the Supreme Court Judgment on J Jayalalitha’s case. This is a 570 page Judgment. Even here ego is hard at work Both Judges delivered separate thought thankfully concurring Judgments. If the Judgment ran for 570 pages, did one Judge still have something more to possibly say that he could not say in 570 pages that he passed a separate Judgment?

Leave that matter aside for the moment. Frankly, I believe that it is time the corrupt are put in jail. But that is not the point. What bothers me most is the conclusion. I will tell you why.

The Trial Court convicted the Accused. The Court in Appeal, overturned the conviction and acquitted the accused. Fine, I could sort of understand that, Lower Courts are corrupt and/or incompetent and/or susceptible to pressure. One could say that the Judge hearing the Appeal did not suffer from any of these handicaps. After all, he was chosen and appointed by the Supreme Court to hear this case. Of course, he passed an 1100 page Judgment acquitting the accused. This acquittal caused huge uproar in all quarters.

Now we have the Supreme Court throwing the Appeal Court Judgment in the proverbial waste paper basket. The entire Judgment is set aside. Nothing was upheld. You have three different verdics on the same body of evidence. In all three Courts the accused had the best lawyers arguing. I am not questioning the correctness of any of the three Judgments. I am asking one simple question. Is there any competency in any Court? Is any Court expected to have a Judgment that is upheld? Is it all ego? Did the Appeal Court have an ego and overturned the conviction? Did the Supreme Court have a supreme ego and overturn the acquittal? Can anyone make any predictions on the merits of his case? Is there any consistency in Court precedents? Is this a shining example of vibrancy of Judiciary? I really have no answer.

To my mind this is all the more disturbing as the Judge to hear the Appeal was specially chosen by the Supreme Court. Were they such poor judges of competence that they never thought that this man would go so wrong and acquit the accused? I leave it to you to decide.

Now that you have read thru this post, do read my quotation again.