Daily Excelsior... Editorial

EDITORIAL

By Nalini J. Singh

The annual reports of crime in India, National Crime Records Bureau, Ministry of Home Affairs, Government of India, indicate that there has been a consistent fall in the conviction rate over the last several decades. As per the annual reports, in 1961, 64.5 per cent of the IPC cases ended in conviction, ........more

The month of fasting

By Professor M Aslam

Slaughter in the womb

By Sarika Manhas

EDITORIAL

Jammu bandh

The Bharatiya Janata Party should be happy with the response to its call for Jammu bandh on Monday in protest against the allegedly pro-militant policies of the Mufti Mohammad Sayeed Government. The bandh has been total and peaceful in the major towns of Jammu, Kathua and Udhampur. It is the first major demonstration of strength by the party after its debacle in the 2002 Assembly elections. However, the party should resist the temptation of rejoicing too soon. From the reports, it is clear that one reason the bandh has been successful is the covert acquiescence in it of the Congress and the Panthers Party both of which, ironically, are the major partners in the coalition Government. Paradoxically in the State politics, no party is free from adopting a double-tongued approach, one to suit the Jammu region and the other the Kashmir valley. Such a harmful tendency has only helped to sharpen the regional divide in the State. The BJP is no exception in this respect. For several decades, the party had exploited the sentiments of the people of Jammu by demanding the abrogation of Article 370 of the Indian Constitution which guarantees special status to Jammu and Kashmir. Till recently the streets of Jammu city would reverberate with the slogans of ‘ek desh mein do vidhan; ek desh mein do nishan; ek desh mein do pradhan nahin chalenge’ (in one country, two constitutions; in one country, two flags; in one country, two prime ministers, would not be tolerated). The BJP had in earlier ‘avtars’ as the Jan Sangh and the Praja Parishad staged violent protests in Jammu and elsewhere on this issue. Now, there is virtually a complete turnabout in the party’s stance. As the leader of the ruling coalition at the Centre, the party had to give up its mulish adherence to the demand for removing Article 370 lest it should lose the support of other parties. No more does the party’s leadership harp on doing away with the separate flag and separate constitution of the State. No less a BJP leader than the Deputy Prime Minister, Mr L.K. Advani, has, on the other hand, said that the Central Government is prepared to discuss the decentralisation of powers with the Hurriyat Conference, of all political conglomerations. This is not at all to ridicule any party for shifting its stance. One should, instead, appreciate such a positive and healthy transformation as it takes into account the prevailing complex realities of politics in the State. What should be scrupulously avoided is the desire to play the ‘Kashmir card’ in Jammu and the ‘Jammu card’ in the Valley. It is a counter-productive thinking and upsets the harmony and homogeneity of the State as a whole.

It is a pity, therefore, that the Congress and the Panthers Party have also exposed themselves to the charge of playing a double role. If the reports are to be believed, the activists of the two parties, whatever their official positions, were seen exhorting the members of the business community in particular to observe bandh. In no way can the two parties delink themselves from any of the decisions of the Mufti Mohammad Sayeed Government. Not only the Chief Minister himself, Pradesh Congress president Ghulam Nabi Azad had, too, opposed the resignation of Agriculture Minister Abdul Aziz Zargar from the State Cabinet after his native house in the south of the Valley was found to have been used by terrorists as their hideout. This was one of the actions of the Chief Minister which had provoked the BJP to give the call for the bandh. How can the Congress play with the hare and hunt with the hound? It is equally inexplicable that the Panthers Party has been quite often projecting itself as the champion of the Jammu region while ridiculing its own Government in the public. Is it not a party to the coalition Government’s common minimum programme? How do such forked perceptions help Jammu anyway?

As for as the BJP is concerned, this will be too early to say that the bandh has consolidated its base. There is no hint yet that its intra-party intrigues are over. More importantly, the differences between the party and its parent organisation, Rashtriya Swayamsevak Sangh, continue to persist on the issue of the statehood for Jammu. The RSS-backed Jammu State Morcha remains in existence as a parallel force with a professedly different objective. Unless the party is able to put its house in order, it is unlikely to recover its past glory in the Jammu region. A better course for the BJP’s state unit would perhaps be to benefit from the recent maturity and farsightedness shown by its central leadership in handling J&K. It should seize the opportunity to build bridges with the people in the Valley. The party has had no significant leader across the Pir Panjal after the assassination of the popular Tikka Lal Taploo. Former Srinagar MP Abdul Rashid Kabuli’s brief stint with the party has not done credit to either of them. However, it has still not lost the opportunity to build on the goodwill generated by Prime Minister Atal Bihari Vajpayee’s public meeting in Srinagar on April 18. To begin with this may prove to be a difficult task. With a greater exposure gradually, the party can assume a statewide appeal. In the long run, this will benefit all concerned on either side of the Jawahar Tunnel.

The man all revered

For some time now, the Buddhist leaders of Ladakh had been shuttling between their trans-Himalayan territory and the national capital. They were moved by their concern for the health of their 86-year old ailing leader Kushak Bakula. Those in New Delhi were in his regular attendance praying for his recovery. Not surprisingly, therefore, there was a tremendous sense of loss when Kushak Bakula breathed his last at his residence in Saket in the south of the Capital on Tuesday. He was one Buddhist leader and thinker of Jammu and Kashmir whom every one had loved and revered. For him, simple living and high thinking was not merely a cliche but an ideal to which he had lived up all through his life. By his faith and conviction, he had excelled in his role as the country’s ambassador in Mongolia. So popular had he become as an envoy that even the diehard Communists in that country were said to have given up their aversion to the religion. The Lhasa-educated Kushak Bakula had been a personal friend of Jawaharlal Nehru and Indira Gandhi both of him had developed fascination for Leh. Although a religious figure, he had also for long been the political voice of his region. He was associated with the Congress for the greater part of his life. A member of the Jammu and Kashmir Constituent Assembly, he had subsequently become a legislator, a minister in the State and member of Parliament for ten years in that order. He had also been a member of the National Minorities Committee before he had been picked up for his challenging assignment in Mongolia. He had a soft exterior behind which lay a firm man who had an unflinching trust in the welfare of the mankind. He had hardly missed any opportunity to speak for his followers and the region. While doing so, he had always taken care not to lose sight of the national perspective. Small wonder then that he had commanded respect from all those who had come in contact with him. His death will be widely mourned.

Judiciary : Why more bail than jail?

By Nalini J. Singh

These figures are still healthy if we go by the general social beliefs and opinion. It is perceived by the public at large that criminals are never punished, conviction is next to impossibility and that the inefficient and corrupt criminal justice system is open to all manipulations for extraneous considerations thus, allowing anyone to get away with any crime be it murder or rape or both. Though the conviction rate has been falling consistently as the aforesaid data speaks, yet since the last few years, there is a significant shift in the judicial approach in dispensing criminal justice.

The Supreme Court (SC) and the High Courts have become conscious and sensitive towards the rising crime in our society. The judicial approach in the decision of criminal cases is changing though the basic principles of criminal jurisprudence remain the same in the law books. The practical application of these principles such as: Proof beyond reasonable doubt, the principle of bail not jail, presumption of innocence, is changing, especially in the High Courts and the SC and this trend is also percolating down to the lower judiciary.

The judiciary is delivering more convictions than ever before, as an answer to rising crime. These shifting trends in the judicial approach towards criminal cases are very significant and have wider ramification on the lives of the people at large, the victims of crimes, and towards persons accused of criminal offences. Some recent judgements of the SC show this.

In the case of Ram Bihari Yadav versus State of Bihar & Ors reported in (1998) 4 SCC 517, the SC has held that against the accused in the manner stated by it and that any act or omission on the part of the prosecution giving rise to any reasonable doubt would go in favour of the accused, yet in a case where the record shows that the investigating officers have exhibited remiss and/or deliberately omitted to do what they ought to have done to bail out the accused, the justice demands that such acts or omissions of the officers of the prosecution should not be taken in favour of the accused, for that would amount to giving premium for the wrongs of the prosecution designedly committed to favour the accused.

The SC has laid down the proposition that in the cases the story of the prosecution will have to be examined before such omissions and contaminated conduct of the officials otherwise the mischief which was deliberately done would be perpetuated and justice would be denied to the complainant party. This obviously shakes the confidence of the people not merely in the law-enforcing agency but also in the administration of justice. In this case, the SC found that the investigation officers had created a mess so as to help the accused who was from the police.

In a recent decision of the SC in the case of Paras Yadav and Ors v/s State of Bihar reported in (1991) 2SSC 126, it was found by the Court that there was a lapse on the part of the investigating officer, deliberate or due to negligence, in spite of which the Court upheld the conviction of the main accused under section 302 IPC for murder. The Court held that on occasions, negligence or omission on the part of the police might give rise to reasonable doubt, which would go in favour of the accused. The Court also held that where the other evidence was available, the lapse on the part of the investigating officer could not be taken in favour of the accused and relying upon the aforesaid decision in the case of Ram Bihari Yadav, the Court reiterated that the prosecution evidence in such cases is required to be examined before such omission to find out whether such evidence is reliable or not. In this case, the investigating officer had committed a serious lapse in not having recorded the dying declaration of the deceased. The SC, however, ignored the said glaring lapse on the basis of the aforesaid principles.

In the case of D.K. Basu v/s State of West Bengal reported in (1997) 1SSC 416, the SC has observed that it needs no emphasis to say that when crime goes unpunished, the criminals are encouraged and the society suffers. The victim of crime or his kith and kin become frustrated and contempt for law develops.

The SC has said that the Court is conscious of the fact that many hardcore criminals like extremists, drug peddlers and smugglers etc., with organised gangs have taken strong roots in the society and it is being said in certain quarters that, with more and more liberalisation and enforcement of fundamental rights, it would lead to difficulties in the detection of crimes committed by hardened criminals.

It is being felt that if too much emphasis is laid on protection of their fundamental and human rights, such criminals may go Scot-free without exposing any element or iota of criminality with the result that crime would go unpunished in the ultimate analysis, the society would suffer. The SC has found these concerns as genuine and the problem real. The SC has also held that it is the expectation of the society that police must deal with criminals in an efficient and effective manner and bring to book those who are involved in the crime. Though the aforesaid observations were made by the Court in the context of the issue as to the requirements to be followed in cases of arrest or detention, yet the message of the court is clear.

As a human rights and a criminal lawyer, it is also being experienced that the general judicial trend today is shifting towards convictions as an answer to the rising crime in the country.

In the case of Pon Adithan v/s Deputy Director, Narcotics Control Bureau, Madras reported in (1999) 6SSC 1, where there was no independent evidence or any other supporting documentary evidence regarding information to the accused about his right to be searched in the presence of a Gazetted Officer or a Magistrate under section 50 (1) of the NDPS Act, 1985, merely relying upon the oral evidence of the investigating Officer in the court regarding the compliance of section 50 NDPS Act, the SC held that the said legal provision had been complied with.

In a recent judgement of the SC in the case of Mohan Singh & Anr v/s State of Madhya Pradesh reported in (1999) 2 SCC 428, it has been held that the court must make efforts to find the truth since this is the very object for which courts are created. To search for the truth, the courts have been removing the chaff from the grain and it has to disperse the suspicious cloud and dust out the smear of dust as all these things clog the very truth.

The SC has observed that so long as chaff, cloud and dust remain, the criminals are clothed with this protective layer to receive the benefit of doubt. It is the solemn duty of the courts not to merely conclude and leave the case the moment suspicions are created. It is the onerous duty of the court within permissible limits to find out the truth. The principle of criminal jurisprudence, which says that no innocent should be punished even if a hundred criminals go Scot-free, has been restated as on the one hand no innocent man should be punished but on the other hand no person committing an offence should go Scot-free.

The SC has held that if in spite of such effort, suspicion in not dissolved and it remains writ at large, benefit of doubt has to be credited to the accused. For this, one has to comprehend the totality of the facts and circumstances as spelt out through the evidence, depending upon the facts of each case by testing the credibility of eyewitnesses including the medical evidence, of course, after excluding those parts of the evidence which are vague and uncertain. This would depend on the evidence of each case including the manner of deposition and his demeanour, clarity, corroboration of witnesses and overall, the conscience of a judge evoked by the evidence on record.

The SC has concluded by saying that courts have to proceed further and make genuine efforts within the judicial sphere to search out the truth and not stop at the threshold of creation of doubt to confer benefit of doubt. Based on the aforesaid principles, the court has also held that mere variance of the prosecution’s story with the medical evidence in all cases, should not lead to the conclusion, inevitably to reject the prosecution’s story.

Due to the criminal threat in the society, the courts today have also become strict in the grant of bails. Though the salutary principle regarding the law of bail is: bail not jail, yet this principle is not being applied in practice. The courts today are quite influenced by the penal provision, which is labelled on the accused by the prosecution. For instance, in cases where the accused is alleged to have committed murder, rape, kidnapping, robbery, drug offences etc, these labels influence the courts and sometimes even the glaring weaknesses in the case of prosecution are overlooked for rejection of bail.

Since the grant of bail is matter of discretion, of course, to be exercised on sound judicial principles, yet discretion is not being exercised as liberally as stated in the legal principles. INAV

The month of fasting

By Professor M Aslam

Fasting in one form or the other does exist in almost all the religions. However, fasting or 'Roza' as practiced by Muslims is an elaborate process of self-purification. The month of fasting or Ramadan involves a wide range of responsibilities on the part of those who observe fasting. What prompts me to write on this topic year after year is our ignorance about each other's religion. Invariably during this month of fasting when I declare myself being on roza or fasting during a meeting the next thing I hear is, 'Can't you at least take some water or juice?' Why this ignorance about each other's religious practices after living together for decades? Is it deliberate? Once I recited in English what we recite in Arabic during prayer (namaz), before a friend of mine who was not a Muslim, he was stunned and said there is nothing (objectionable) in it what we are made to believe. It is, therefore, necessary that we share information and appreciate each other's religious practices more frequently. It will certainly bring us closer to each other.

What does fast in physical terms mean to those who want to understand what fasting is all about. It essentially means that the practioner of fasting (roza) has to start fasting from dawn to dusk for a month after the moon of month of Ramadan is sighted. A person on fast has to have 'sahri' or pre-dawn meal. It is light meal which can be taken up to roughly one hour and twenty minutes before sunrise. The breaking of fast is called 'Iftar'. The fast has to be broken 2-3 minutes after the sunset with any food available but dates are preferred. After breaking the fast one can take anything till the next 'sahri'. In essence, Iftar is technically the meal with which the Rozadar (the one who keeps the fast) breaks the daylong abstinence from food and water (roza). Islam believes in sharing. It is therefore, expected of a Rozadar that he/she will share 'Iftar' with her/his family, friends and more specifically with the who cannot afford 'iftar'. We not allow even these religious processes of great social significance remain politically neutral?

The concepts of hospitality, neighbourhood and charity are important virtues apart from self-purification, which the month of Ramadan is expected to imbibe among the true followers of Islam. The Prophet had said, "Those who become happy on hearing the sound of the footsteps of a guest, God will forgive their sins". Since true Muslims try to practice all good things to receive forgiveness from God, there cannot be a better motivation than this to achieve the same. It is a great incentive to practice the concept of hospitality.

The practice of the concept of neighbourhood is equally important. It has wider connotations than its literal meaning. The Prophet had said, "One should behave decently with the whole of humanity and foremost among them is your neighbor." If one connects it with the concept of fasting, an immediate implication is that a true Muslim cannot see any human being hungry, even if it means having to sacrifice 'iftar' and to continue fasting for the next day. Similarly, a true Muslim cannot see a human being in pain or misery. It applies to both one's immediate neighorhood as well as humanity at large. In essence Islam in general and 'roza' in particular teaches a person to address human concerns and values.

On charity it is said that if one gives say a charity of rupees ten during the month of Ramadan, he will get 70 times more blessings in return. This is a great motivation and in reality an average middle and lower middle class Muslims to follow this more meticulously than rich ones. The rich on the other hand do it for the sake of fame & name. A Muslim is also expected to take stock of his personal wealth both cash and kind, every year and calculate 'Zakat' at the rate of about 2.5%, which is to be earmarked for distribution among the poor and needy. In return God will safeguard his wealth and property. This is also normally done in the month of Ramadan. What a wonderful scheme to bring about social justice! If all the rich and well to do Muslim families only practice this concept of charity, there would be very few dying of hunger and lack of shelter in the colonies inhabited by desperately poor people.

One of the greatest advantages of fasting in the month of Ramadan is that its true observance inculcates in a person a habbit of speaking the truth a commodity that is becoming very rare now-a-days. This may be one of the reasons that many politicians do not observe it. If a person speaks the truth, practices the concept of hospitality and neighbourhood and gives charity as advocated above, he will certainly be entitled to God's blessings and protection, which we all need so desperately in these modern times.

(The author is a Sociologist and is currently Professor at IGNOU in New Delhi).

Slaughter in the womb

By Sarika Manhas

At a time when women are seen as making definite moves towards asserting their own personalities, the incidences of crime against them have been on an upswing. Women of all ages and cultures are seen as an easy prey to the doppelganger of men. The female folk are visualized as the inferior and the weaker sex. This is especially true in context of our Indian culture, as here the premium is placed upon begetting sons. Not only the males in the family but also other females often subject women bearing daughters to inferior treatment as well. The desire to beget sons is deed rooted in the psyche of the Indian masses. This son preference cuts through all classes of society, rich and poor and even educated and uneducated. Girls are considered an economic liability and boys as a blessing. This secondary treatment meted out to them continues throughout their lives in one form or the other. The multitudes of technological and sociological transformations have had a negligible influence on the status of women across our country.

The data under the head 'sex composition' based on the census of India, 2001 has brought to the fore certain trends dangerous for the Indian population. The sex ratio defined, as the number of females per 1000 males in the population stands at 933 for the year 2001. Over the past 100 years, the ratio has been continually declining from 972 in 1901 to 946 in 1951 and to 933 in 2001. The child sex ratio in the age bracket of 0-6 years is even more appalling. The figure of 927 for the year 2001 is sharp decline from that of 945 for 1991 (Kalyani, 2001). Besides, this figure has been falling drastically over the past 40 years. The decline is common to all States and Union Territories except Kerala, Lakshadweep, Tripura, Mizoram and Sikkim, which are high literacy pockets in the country. Child sex ratio decline has been most prominent in the high per capita income areas of Punjab, Haryana, Himachal Pradesh, Chandigarh and Delhi. In Punjab, the ratio has fallen from 875 in 1991 to 793 in 2001, a whopping 82 points. Haryana, Himachal Pradesh, Chandigarh, Delhi and Gujarat have all shown a decline of 50 odd points in the child sex ratio.

Thanks to technological advances, the sex of foetus can be determined through pre-natal sex-determination tests such as amniocentesis, ultrasound and imaging. Diagnostic technology and testing facilities are breakthroughs in the field of medicine to ascertain, during pregnancy any foetal malformation or genetic disorder or whether the foetus is a threat to the mother's life, so that the pregnancy could be terminated. But these tests have been used for sex-determination of the foetus and consequent female foeticide. This heinous crime of killing the child in the womb is on a rise especially during the past few decades. The sex-determination tests are quite inexpensive and allows for the option of early medical termination of pregnancy (MTP) if the baby in the womb is discovered to be a girl. And clinics offering such facilities have mushroomed in urban and rural areas. Even our own city of jammu is not left untouched with this disturbing and disturbing and disquieting trend. Over the past 10 years, a number of these clinics mostly in disguise of private nursing homes and clinics have opened.

The year 2001 had been declared the Women's Empowerment Year. It is preposterous than a time when there is much hype and brouhaha over gender equity, female foeticide and infanticide continue unabated. It has continued in spite of legislation. The Pre-Natal Diagnostic Techniques (PNDT) Act which came into effect in 1996, clearly States that 'no prenatal diagnostic techniques shall be conducted except for the purposes of detection of abnormalities'. This act though constructed with a humane intention is being used as a tool of discrimination against the girl child.

Based on a public interest litigation (PIL) filed in the Supreme Court regarding female foeticide and falling sex ratio, the apex court has directed the Union and State Governments to stringently enforce the PNDT Act and amend it to cover further pre-conception sex planning methods. The central supervisory board constituted by the Union Health Ministry in April 2001 has proposed that 'all ultrasound clinics, nursing homes and laboratories should be registered'. In Delhi, genetic counselling centres, genetic laboratories and fertility clinics and also required to register with the health ministry. All such clinics have to put board saying that pre-natal diagnostic tests are not being conducted there. But again these laws are not adequately enforced, leading to the unstoppable continuation of this crime.

In order to stop this malpractice few stringent actions need to be taken. The Medical Council of India's code of ethics, which is a powerful weapon against errant doctors, needs to be amended to recognize sex-determination chromosome separation techniques as unethical. It becomes the prime responsibility of the doctors that they do not indulge in such misdemeanors. They need to become accountable to their own profession and towards their social commitment. Reframing of the legislation is required so that the loopholes could be plugged. The laws so far framed have failed to yield desirable results, mainly because our legal system markers have probably lacked the determination of actually controlling this menace. However, the most crucial step towards solving the problem will be to bring about a sustainable change in mindset of the society at large. The community leaders especially the religious leaders, who have mass appeal, need to change their views on existing traditional customs and practices. This would help in the establishment of a gender-just system. All sections of the society need to be involved in the fight against this malpractice. Community outreach programmes need to be carried to make the people aware that feticide as well as infanticide are crimes and are legally punishable. Gender sensitization is also the most imperative in the given situation. Respecting the uniqueness and individuality of women is a must.

The co-existence of son-preference and small-family norm should not end up in female foeticide and infanticide. However, we all need to realize that female foeticide is a crime and where all need to make efforts to surmount this quandary. The lives of the unborn female child when safe would definitely ensure a healthier and a happier society.