Some Thoughts on Feminine Insecurity and Legal Obscurity

(By K.G. Balasubramanian, Advocate, High Court of Kerala)

Jyothi has no New Year. Her rustic parents will never be able to smile proudly at a patient who might have said “Your daughter’s hands are divine”. I did not know Jyothi, but she is familiar to me, like thousands of young girls and women I see at crowded bus stops, waiting for buses that will not stop, suffering unfathomable ignominy from male eyes and hands, like any girl who meant the universe to her parents. Fate was cruel to her, in the form of those monsters who made her scream “HELP!” in that cruel Delhi bus on that fatal day.

Indian chivalry and human rights went into hiding on that night! They regularly go into hiding all over India when little girls and boys in their cute uniforms with their crayons are abused, when mothers returning from office or shopping are molested! Jyothi goes back to her parents in a decorated casket, with the high and mighty vying with each other to outshout each other in recrimination. Shame, India, shame! To make Jyothi immortal, you gave her a mortal blow.

I am a simple individual who takes decent living as a fundamental right of every Indian, which the “State” is bound to provide and ensure. Every female has a right to look fair, without fear of unfair elements. None has the right to trespass upon her person. To me, like many others, justice does not mean a decorated casket at the end of the day and hollow sympathy before camera.

Newspapers screamed on 23.12.2012: Death penalty assured by Government to rapists! I was shocked at the Government’s insipid stand. In a nation where crimes and criminals are frequently recognized, categorized and castigated in the framework of “minority and majority”, “forward and backward”, “schedule and general” and “ruling party and opposition” also, where some elected representatives have questionable antecedents, where legislation is a matter of bargain between political parties, where we have a police system susceptible to whatever influence, where it is only for courts to decide guilt of an accused and impose punishment, where political leaders spume abuse at courts as they find convenient, where the hangman gets disgusted at the delay in the convict being brought to the gallows, where his noose gets decayed by decades of waiting, how can a responsible Government guarantee any particular punishment, much less punishment, to any criminal for a particular crime? We have instances of death sentences remaining mere sentences for various reasons. Suffice to say, the Government has acted improperly in assuring death penalty to rapists. That amounts to blatant interference with business of the House and administration of justice and principles in awarding sentences by criminal courts.

Every religion has negative sex content in some degree. They have also given causative immortality to immorality to some degree. Every civilization speaks of instances of illegal or forced sexual overture. We gave the world Vathsyayana and Kamasuthra. We gave the world Khajuraho. Those were human concepts of the divine side of sex, matters of faith. Our scriptures speak of purity of sex and the richness of ekapathnivrutham and pathivruthyam. West gave the modest us the very immodest Fanny Hill, Anonymous, Harold Robins and Co.

Many of you would be surprised to know that there are villages in certain parts of our country where violent criminals are born and bred. That culture is spreading all over the country, urban and rural. An evil of immense proportions is invading our society; a society bold and confident that our legal system will say in many prosecutions: there is no proof !  When a victim approaches authorities and court for justice, she is reproached.

Pregnancy care, changed lifestyles and advanced living standards have led to healthier children with adulthood at 11 and male virility even at 70. Visual media has also recklessly contributed to increase in libido regardless of gender and age. Rural or urban, human instincts are same. To top it all, we have ridiculous laws to take culprits to task. “Immoral traffic” laws were correctly enacted at some time; but they need to be amended. Complacence has brought us to the shameful state that a girl is not safe even with her own parents. Even hospitals, police stations, prisons, schools and offices have become scenario of sexual abuse.

Our socio-legal pundits say that the criminal is to be reformed, not punished. My foot! Has anyone among them suffered the trauma of rape or dope or burning or tried telling a rape victim or her husband or father or other family members that the rape and rapist are not to be blamed, but our social set up? I would tell these pundits, without hinting vengeance, that if the offender has a right to be reformed, the victim had a better right to be left alone. The lust of a sex maniac (violent groups, now) cannot be an excuse for violation of a woman’s modesty.

Some people say rapists ought to be castrated. Before examining the constitutional implications of such punishment, the history of castration should be briefly examined. The practice of castration took roots before recorded human history. Origen is reported to have castrated himself based on Gospel of Matthew 19:12 and other passages in Matthew and Mark that appear to endorse voluntary amputation to avoid sin. Edward Gibbon’s Decline and Fall of the Roman Empire reports castration of defeated foes at the hands of the Normans. It was practised by the victor to possess the defeated group’s women and also to extinguish opposing male lineages. Castration was one of five punishments inflicted on criminals during the reign of Emperor Shun and Yu in China. Castrated men — eunuchs – were often admitted to special social classes and were used to staff bureaucracies and palace households, the harem in particular. History reveals an appalling state of affairs that castration was an attraction in slave trade because of the high price brought by eunuchs, despite 90% casualty rate during the barbaric procedure. Castration is reported to have been performed recently on villagers of Darfur region in Sudan. Asia boasts of hijras  in well-defined, organized all-hijra communities.

Despite not being a criminologist and keeping personal philosophy aside, I would suggest that reformative punishment should be out of place in rape and dope cases. Capital punishment proposed by the government is a matter of collective legislative wisdom initially and of judicial decision thereafter on a case to case basis. Unworkable laws and ineffective punishment will not restore the dignity of the victim. Nothing ever will.

Testosterone-depletion treatment is administered also to reduce sex mania in those considered deviant. Surgical castration has been in practice in many countries. It is learnt that the Czech Republic practices surgical castration of convicted sex offenders. One serial offender is reported to have stated that being castrated was the best decision he ever made: “On the one hand you have to protect the potential victims and on the other hand I wanted to be protected from myself, I wanted to live like a normal person.” (http://en.wikipedia.org/wiki/Castration#Punishment).

If castration is not possible, impotency can be clinically imposed. In a country that castrates dogs, I dare say that clinical castration seems to be a welcome punishment to a rapist for his inhuman adventure with an unwilling female. He should have thought of her human rights beforehand. He has no right to plead “human rights!” afterwards. I should say the majesty of Article 21 does not permit “liberty” of a rapist to outweigh the indignity and trauma of a victim. It gives me no pleasure to say that if he made her feel horrible, he also should feel horrible. Let us remind ourselves that misplaced compassion makes bad law worse. We certainly need not follow the western system of prison inmates and their mates being allowed to be with each other in seclusion. Our social structure and moral standards do not permit the “oldest profession” to be legalised, though it is heartening to find there are serious attempts by various organisations to  ameliorate the plight of sex workers. In the first place, they did not become sex workers by choice.

Doctors say that castration and impotency lead to mental imbalance also at times. One additional way to ensure discipline of a rapist would be incarceration for life, though the “aam aadmi” will have to pay for that also. Immorality cannot totally be contained by legislation, but its contamination can be deterred.

The rapist needs not only the therapist and jailer, but also a surgeon to reform his form, not just his mind. The hangman’s noose will not be good enough on him.

My tears are cold, cold because of cold and helpless anger, cold because of frustration that “Govindachami”s will enjoy secure life while hot tears will continue to blind parents of Jyothi and Soumya for years to come, while pain will pierce their hearts every time they look at another girl.

Professional Ethics Professional Etiquette -- Seven Lamps of Advocacy --

Duties of the Lawyers-Bench/Relations

(By N. Subramaniam, Advocate High Court of Kerala)

1.  Professional  Ethics:

Professional ethics means code of conduct, written or unwritten, which prescribes the duties of the Legal Practitioners and regulate their behaviour in respect of such duties. The word ethics comes from the Greek word “Ethos” which means habitual mode of conduct. Section 49(1)(c) of the Advocates Act, 1961 enables the Bar Council of India to make rules prescribing the standards of professional conduct and etiquette to be observed by the advocates. Of course, such rules have effect only when they are approved by Chief Justice of India.

2.  Meaning  of  the  Term  Etiquette:

Etiquette is different from ethics. It refers to the pattern of behaviour and mode in which the person is to conduct himself. Etiquette contains an element of elegance, dignity and decency. The members of the legal profession have to observe these things as etiquette and thus respecting dignity of the profession and prevent injuries to its members. It is the duty of an advocate to follow etiquette at all times and observe himself in a manner befitting as an officer of the Court. He is a privileged member of the community and a gentleman.

Section 24 of the Advocates’ Act deals with the qualifications required for a person to be admitted as an advocate.

3.   Seven  Lights  of Advocacy:-

One of the eminent judges in the judicial field has qualified the following qualities as “seven lamps of advocacy.” (a) Honesty (b) Courage (c) Eloquence (d) Fellowship (e) Industry (f) Wit and (g) Judgement.

A. Honesty:

Honesty is the most important quality that an advocate should possess. His words, deeds and thoughts should have connection in relation to each other. He should be reliable and dependable to the clients.   It can be said correctly that the uprightness, honesty and integrity of an advocate will boost his reputation and respect.

B.  Courage:-

Advocate should fearlessly uphold the interest of his client by using honourable means. He should not think about any unpleasant consequences to himself or the other. Immaterial of his personal opinion, he has to fight for the client, if he is engaged. It should not be out of place to say that, it is knowledge and skill of the advocate that, gives him the necessary courage and confidence to represent the case fearlessly for the interest of the client. Advocate gets this knowledge by mastery of facts, mastery of law, skill in drafting and presentation of convincing arguments.

C. Eloquence: 

One of the powerful weapons of an advocate is his eloquence i.e., strong vocabulary which is fluency, flow and style of the use of the language. Words are the media of expression of thoughts for convincing and persuading the Judge of his eloquence and vocabulary gives assurance and builds self confidence.

D. Fellowship:

In courts, advocates fight with another advocate before a learned Judge, there may be controversies and contractions in the matter before the court but as a top most learned lawyer of the past and present has observed that this fight should never affect their fellowship. Using words “learned friend” and “learned Judge” is an indication of fellowship. The Bar Council of India has certain rules regarding duties of colleagues.

E.  Industry:

Industry itself is hardwork. It is absolutely necessary for an advocate, he should be never be ignorant of the current law in force, which he will obtain only by systematic study. There is a proverb in the legal field “if one ignores the law, the law will also ignore him.” That is reason why it is said that law is a jealous mistress.

F. Wit:

It is true that lawyers and judges are dealing with variety of serious and important matters affecting life, liberty, property etc. Thus during the course of the arguments, many generate strain, tension and excitement, in order to get a favourable verdict. It is at this stage that, an occasional wit and humour provoking a smile or laughter will help them to ease the tension and refresh themselves to sharpen their mental ability for discharging their duties.

G. Judgment:

This means ability to come to sensibile conclusions and right decisions in the proper way to these conclusions. An advocate should employ the necessary facts and techniques in the manner in which he is engaged, which should be necessary from the beginning to the end of the suit proceedings. Needless to say that an advocate should travel in an engine and not in a compartment, in other words, he should be in a position to anticipate the movement on the other side and work up on that with peace of mind and alertness to avoid an awkward situation.

H. Duties of the Lawyers to Opposite Party:

Regarding duties to the Profession and duties to Court and Clients, Bar Council of India has made rules (Rule 34, 35) relating to duties to advocate of the opponent. Rule 34 says that an advocate shall not in any way communicate or engage upon the subject matter of the controversy with any parties to represented by an advocate except through that advocate. Rule 35 provides that an advocate shall do his best to carry out all legitimate promises made. He shall not use malicious tactics against the opponent, should not abuse rules of evidence and the process of the court and should not make baseless tactics on the reputation of the opponent.

I.  Duties  to  Profession :

It is the duty of an advocate to uplift the profession to which he belongs and should not conduct himself to  lower standards of profession. Lawyer profession is a noble profession.

1. An advocate shall not speak ill of the profession. He should try to enhance respect, sympathy and good feeling within the members of the profession and keep up respect ,honour and dignity of the profession. He shall not solicit any work by advertisement or otherwise. He shall not act or plead in his professional capacity before any officer of the State, who is not quasi judicial or judicial officer. He shall not appoint any touts for getting work. He shall not place himself in a situation which may be unbecoming to an advocate. He shall not oppose the desire of the clients for any additional professional help, from other lawyers also. An advocate shall not act as a Managing Director or Secretary, without leave of the Bar Council of India and should not work as a full time salaried employee or a firm or Corporation.

2. If an advocate has inherited or has succeeded by survivorship to a family business, he may continue it, but may not personally participate in the management of the business.

3. It will be better that he disengaged himself in any literary, scientific or cultural activity without or with payment. But he can act as arbitrator. He may write text book for a salary and can be a member of the local body.

4. Duty to the Court.:-

A.  He should show due respect to the court and shall not act so as to undermine confidence in the judiciary. He should be punctual in attending courts in the prescribed dress. He shall be fair while conversing with the court.

B. He shall not ask for an adjournment without justification or a ground which is known to be untrue. He shall not speak ill of judges. But, if a judge behaved improper way, it is not only the right but also his duty, to submit his grievances to proper authority.

C. An advocate shall not interrupt when the counsel for the other side or a judge is speaking except in certain cases.

D. An advocate should treat the opposite party in fairness and avoid any question to humiliate or embarrass them. 

E. An advocate shall not act or plead in all matters in which he is interested. If he is a member of the executive committee of any organization, institution, society or corporation, he shall be not appear in those matters.

F. Rules 11 to 33 of the rules framed by Bar Council of India deals with duties of the lawyer towards his client. Some of them are hereunder given.

i. An advocate shall give his advice honestly and in good faith and without taking advantage of the ignorance of the client.

ii. He should keep professional privilege, not to communicate one matter which is between him and his client to others.

iii. If the advocate has been examined as a witness in the lower court, he should not appear as a lawyer in the appeal from that case.

iv. Without good reason he should not withdraw from the engagement.

v. An advocate should keep regular accounts for the client’s money paid to him including money received from the court or from other parties on behalf of his client. The receipt of money by the advocate on behalf of client should be intimated to the clients. An advocate shall not arrange that the client’s money with him, is converted as loan to him.

vi. An advocate shall not loan money to his client for the purpose of any action or legal proceedings, in which he is engaged by such client. An advocate should not acquire any interest in the subject matter of the litigation and should not as a surety or certify the soundness of the surety for his client.

Tailpiece : When a senior advocate, senior in age or otherwise enters the court and finds that none of the chairs are vacant any youngster occupying a seat is to rise up and offer that seat to the aged lawyer.   This is not happening nowadays.

Some Thoughts on Clemency and Sovereignty !

(By K.G. Balasubramanian, Advocate, High Court of Kerala)

The power to punish and pardon – what a prerogative! A thought that was embedded in my adolescent mind, the result of reading necessary and unnecessary fact and fiction, reality and myth, in an urge to know everything that was there to know, at an age when I did not know that the ocean called knowledge has no shores! A thought that took further shape and direction as a lawyer, a thought that is yet to attain definite form and dimension!

Execution of the 26/11 villain and debates on his rights compel me to speak out. Is it not a contradiction in our constitutional jurisprudence that the President of the Union or the Governor of a State is given the prerogative of clemency in the name of so called authority of the “Sovereign”, of course, aided by advisors? I have the feeling that, considering the theory of separation of powers envisaged by the Constitution, the preamble thereto and the fact that the “Sovereign” strictly-so-called has ceased to exist except as an abstract concept in a democracy demoralized by vendors of power, conferring power of clemency on the President/Governor is nothing but an obsolete and undemocratic indulgence.

True, the Monarch had unbridled, if not arbitrary, power to hang and release. (I am sure many readers would remember pardon being granted because it was the monarch’s birthday, or he got married or because he had a child or he attained 60 years). Can such sovereign power be attributed to the Government of a democratic republic, whose “sovereignty” has to be assessed and appreciated in wholly different terms of right, privilege, sense, content, spirit and quality - to be accepted truly in terms of constitutional philosophy of separation of powers? We regretfully note that hordes of convicts have been given parole by various governments; we also note that sentences and orders by courts have been dishonored for reasons best not mentioned.

I am not on the question of capital punishment being necessary or not, though my philosophy is that no man has the right to take the life of another. We are a nation that claims to apply the yardstick “rarest of rarest”, by judges who do have different degrees of compassion and justice. Think of other civilized countries where drug peddling invites death penalty. Think of other civilizations where the convict is beheaded or stoned to death. I dread the unseen picture of entombed Anarkali gasping and writhing in pain.

A person is awarded capital punishment by a learned Sessions Judge, subject to confirmation by a Division Bench of the High Court and rarely affirmed by the apex court. The whole exercise normally takes a decade. What is the jurisdiction of the President/Governor to upset a sentence of capital punishment thereafter, except the anachronistic power of clemency/reprieve?

Remember, we have the wholesome precedent of court judgments being impregnable by legislation. A final judicial decision can be avoided only by legislation removing its substratum and by no other process. In such a legal system, what is the business of the Executive to recommend clemency or reprieve or whatever, to the President/Governor? If the Parliament cannot upset a judicial decision, how can the President act on the advice of the Prime Minister and Cabinet (or otherwise) and upset that decision?

My Lord! Only you have the power to create and destroy. Only you have the power to punish and pardon! I shed tears, not for the 26/11 villain, but for those whom he brought down and their families.

Mohammedan Law -- Talaq -- Essential for A Valid Talaq

(By N. Subramaniam, Advocate, High Court of Kerala)

1. Whether, for effecting divorce amongst Muslims in writing, the pronouncement of the word “Talaq” thrice before two witnesses of his choice and its communication to wife or her close relatives is sufficient or not ? In other words, pronouncement of triple Talaq in the presence of two witnesses and its communication to wife or her relatives is sufficient for a Muslim husband to divorce his wife? 

2. The correct legal position regarding “Talaq” is seen as follows.

a. If a Muslim husband wants to divorce his Muslim wife, then he can pronounce “Talaq” thrice.

b. There must be sufficient reasons for the divorce.

c. But before pronouncing “Triple Talaq” there should be a reconciliation attempt to avoid divorce, in the presence of two mediators, of which one mediator should be from the husband’s family side and the other mediator should be from the side of wife’s relatives. This type of reconciliation, mediation is a condition precedent for pronouncement of “Triple Talaq”.

d. The reasons for pronouncement of Talaq should be objective and not subjective and should also be of sufficient reasons.

e. If this mediation fails then the talaq comes into effect, if mediation succeeds no question of divorce arises at all.

f. If the mediation fails, then the talaq should be communicated to the wife and or her close relatives and in many cases through the Mahal of husband to the Mahal of wife.

g. If this legal process is not complied with, then as per law, there is no divorce at all. Even if Triple Talaq is pronounced, without undergoing through the above mentioned reconciliation, then there is no talaq or divorce at all and the wife continues to be the wife, as before with all legal rights available to a Muslim wife.

3. This is so laid down in

a.   2002 (3) KLT 537 (SC) = AIR 2002 SC 3555 = (2002) 7 SCC 518  (Shamim Ara v. State of U.P.).

b.   2004 (2) KLT SN 71 (C.No. 84) Karnt. = AIR 2004 Karnt. 26   (Mohammed Ibrahim v. Mehrunnisa Begum).

c.  2008 (2) MLJ 23 (Ajmal Khan v. Doulath Begum).

d.  2012 (1) CCC 72 (Gauhati) Musstt Rebunessa v. Musstt Bibi Aiysha.

e.  2002(3) Maharashtra Law Journal 602 (FB) (Dagduchotu Rathan v. Rahi Moi Dagdu Pathan).

f.  1995 AIHC 416 (Zeenat Faetma Rashid v. Md. Iqbal)

g.  In AIR 2004 Karnt. 26, it has been laid down that the consent of wife is also necessary to pronounce Talaq. 

h.  2000 (3) Maharashtra Law Journal is seen to be an exhaustive judgment, touching almost all aspects on Muslim Talaq.. 

i.  2010 (2) KLT 71 =  ILR 2010 (2) Ker. 140   (Kunhimohammed v. Ayishakutty)  (D.B.).

4. If without observing all the legal requirements for effecting talaq, and if the husband, even if he has simply pronounced triple Talaq in the presence of two witnesses of his own choice, the “Talaq” being legally invalid and wife continuing to be the wife, if husband proposes to marry a second wife, then the first wife may be entitled to file a suit or approach Family Court and obtain an injunction against the proposed second marriage of her husband.

5. It is true, that under Mohammedan law a Muslim can marry four wives at a time. So, even if the husband, does not effect a legal divorce, he can marry three more wives at the same time. If so, no Talaq at all is necessary. But this right of a Muslim gentleman to marry 4 wives at a time, has other legal aspects also to follow. However, the marriage of 4 wives at a time has nothing to do with the question as to how a legal divorce could be effected under Mohammedan Law.

6. Mullah's Principles of Mohammedan Law enlighten all about the various types of Talaq and the ingredients for each type of Talaq.

7. The Kerala High Court in the decision reported in 2010 (2) KLT 71, mentioned earlier, refers to many other decisions (see para 41).