Hathras And More an Analysis or Rape Cases In India

Your vulnerability of being poor makes you prone to violence and even after that you are victimized and looked down by the society but this becomes worse when your ability to fight the oppressive structure of the society only comes with privileges.

Hathras case

A 19-year-old Dalit woman from Hathras, Uttar Pradesh has died after she was allegedly gang raped and assaulted by a group of four upper caste men. Police was accused of being tardy in registering complaint, slow investigation where samples were taken 11 days after the woman was attacked, rape charges were doubted and authorities appeared to be complicit in turning with the upper caste perpetrators. Police hastily cremated the victim in the middle of night, refusing to hand the body over to her family. Media and opposition were denied the permission of meeting the victim’s family members by authorities.

Authorities said that the forensic report had found no semen or semen excretion in the viscera sample of the victim, and the cause of death was due to trauma caused by the assault. The incident took place on 14 September.after eight days, Victim gave a statement (in the presence of magistrate) to the police saying she had been gang raped. This per se as a dying declaration is admissible evidence in India.

The forensic sample was sent to the forensic laboratory on 25 September. These samples were taken after 11 days. The likelihood of finding evidence is limited to only three days – or 72 hours – after that it is greatly reduced. As the samples were not taken in time, these reports should not be considered a substantive evidence in the case.  It is necessary to understand all the laws and evolution of those laws that revolve around this situation for better understanding of the main problem.

First Law commission and Indian Penal Code

There were many diverse and conflicting laws prevailing across India regarding sexual violence. The codification of laws began with the Charter Act, 1833 which established the first Law Commission under the chairmanship of Lord Macaulay. ‘Rape’ as an offence was first introduced in the Indian Penal Code in 1860. Section 375 of the IPC made punishable the act of sex by a man with a woman if it was done against her will, without her consent or by obtaining forced consent. Section 376 of IPC provided seven years of jail term to life imprisonment to whoever commits the offence of rape.

Tuka Ram case and Criminal Law (Amendment) Act of 1983

In 1972 a young girl was allegedly raped by two policemen in the Desai Gunj Police Station of Maharashtra. The sessions court conclued that she had sexual intercourse while at the police station but rape had not been proved. Even though sessions court acquitted both the policemen, the High Court reversed that order of acquittal. When the case (Tuka Ram And Anr vs State Of Maharashtra) reached the Supreme Court, it overturned the High Court verdict and said that “the intercourse in question is not proved to amount rape”. The Apex court, in its September 15, 1978 verdict, said no marks of injury were found on the girl after the incident and “their absence goes a long way to indicate that the alleged intercourse was a peaceful affair”.

This verdict instigated many protests across the country seeking a change in rape laws, Thus Criminal Law (Amendment) was passed now known as Criminal Law (Amendment) Act of 1983.

  • In the Indian Penal Code, Section 228A was added which makes it punishable to disclose the identity of the victim of offences under section 376, 376A, 376B, 376C and 376D.
  • Heading of Section 375 and 376 was changed from “of rape” to “sexual violance” and certain section under that were substituted.
  • In code of criminal procedure, section 327(2) and 327(3) were added which made the inquiry and trial of rape or an offence under 376, 376A, 376B, 376C and 376D of IPC to be conducted under camera.
  • In the Indian Evidence Act of 1872, a new Section 114A was inserted which stated that where sexual intercourse by accused is proven and the question is whether it was without the consent of the woman alleged to have been raped states in her evidence before the court that she did not consent, then court shall presume that she did not consent.

172 th Law commission report and 2002 amendment

A public interest litigation (PIL) to widen the definition of sexual intercourse in Section 375 of the IPC was initiated by Siksha, a non-governmental organisation. Following the direction of the Supreme Court, the Law Commission in its 172th report recommended widening the scope of rape law to make it gender neutral.

Rape law in india is still gender specific (perpetrator of the offence can only be a ‘man’) but 172nd report by law commission led to some specific amendments in the Indian Evidence Act in 2002. A new provision which prohibited asking questions in the cross-examination of the victim as to her general ‘immoral character’ in attempt to rape or rape cases was inserted by this amendment.

Delhi case, J.S. Verma Committee and Criminal Law (Amendment) Act of 2013

December 2012, a 23-year-old student died after being brutally raped by six men on a moving bus. Audacity of these perpetrators in this horrific incident shook people from inside and led to an outrage in the country. Country asked for death penalty for these perpetrators. This public outcry led to enactment of the Criminal Law (Amendment) Act in 2013. These amendments were made according to the recommendation of the Justice J.S. Verma Committee, which was constituted to retrospectively look into the criminal laws in the country and recommend changes.

Criminal Law (Amendment) Act in 2013 extended the definition of rape, It also created new offences, such as use of criminal force on a woman with intent to disrobe, voyeurism and stalking. it also provided for the death penalty in rape cases that cause death of the victim or leaves her in a vegetative state. Punishment for gang rape was increased from ‘10 years to life imprisonment’  to ‘20 years to life imprisonment’. This amendment clearly defined offences such as use of unwelcome physical contact, words or gestures, demand or request for sexual favours, showing pornography against the will of a woman or making sexual remarks.

  • In section 100 of Indian Penal Code another subsection concerning the offence of throwing acid was added.
  • In Indian Penal Code, section 166A and 166B concerning public servants disobeying directions under the law and punishment for non-treatment of a victim was added
  • In Indian Penel Code section 326A (voluntarily causing grievous hurt by acid), 326B (voluntarily throwing or attempting to throw acid), 354A, B, C and D (sexual harassment, assault or use of criminal force to woman with intent to disrobe, voyeurism, stalking) were added.
  • In Indian Penal Code section 370 and 370A concerning trafficking in persons and exploitation of a trafficked persons were added
  • Sections 375 (rape), 376 (punishment for rape), 376 A (punishment for causing death or resulting in persistent vegetative state of victim), 376 B (sexual intercourse by husband with wife during separation), 376 C (sexual intercourse by a person in authority), 376 D (gang rape) and 376 E (punishment for repeat offenders) were amended. 
  • In section 509 the penalty for making words, gestures or acts intended to insult the modesty of a woman was increased from a maximum of one year to a maximum of three years with a fine.

Kathua case and Criminal Law (Amendment) Act, 2018

In January 2018, a group of men abducted, raped and murdered an eight-year-old girl in Kathua, Jammu and Kashmir. This shocking incident instigated nationwide protests and calls for much harsher punishment. Due to  this Parliament enacted the Criminal Law (Amendment) Act, 2018 which for the first time put capital punishment as a possible punishment for rape of a girl under 12 years. Specific section concerning rape on a girl below 16 years was inserted in Indian penal code. Minimum imprisonment of 20 year  which may extend to imprisonment for life was provided for the same. The minimum jail term for rape was increased from seven to 10 years.

A comparison between 2018 and 2019

Explanation of the Data

According to the latest National Crime Records Bureau (NCRB) report, there were 32033 reported cases of rape in India in 2019. In 30165 cases the perpetrator was known to the victim. 1931 gang rapes tookpace in 2019. In 2373 cases the same woman was repeatedly raped in 2019. At the same point of time several thousand cases were pending investigation from the previous years. Top 5 states (Rajasthan, UP, MP, Maharashtra and Kerla) had 15869 cases which is nearly 50% of total cases.

In 2018, there were 33356 reported cases of rape, out of which in 31320 cases the perpetrator was known to the victim. 1826 gang rapes tookpace in 2019. In 2472 cases the same woman was repeatedly raped.

Issues with current Data

The current data is already horrific and can shook individuals still this data can not be seen exhaustively. India is a patriarchal society which is further divided in classes and many castes. This divide created a power hierarchy in the society itself, where poor sufferers financially and woman suffers because of dominant male society but a poor Dalit woman at the same point of time suffers of

  1. Narrative of cast, where she is looked down just because she is dalit,
  2. Male dominance, where she had to let go many opportunities and
  3. Financially, where she can not even sustain her livings without dependence.

All of this and lack of hope for these women in the society forces these women to be suppressed and not to speak against oppressors. Many of these cases don’t even get reported because of the stigma that is attached to rapes, where a woman is looked down upon by society, where she is questioned on moral grounds but even when some of these get the courage to break that stigma, family, society and authorities stops them to do so.

Why laws are still not affecting the numbers-

Even though there has been a time to time amendment of laws yet the situation is the same where almost 100 rapes take place daily. Social mindset of people has been similar, there are inadequate streetlights and lack of other infrastructure, police has been working very slow that includes a slow investigation, sample labs have been in bad condition and the justice system has been rigid. Following issues shed some light on the same: 

  • Evidence stores- these stores in various police stations were found to be in a bad situation where evidence is contaminated before the time they even reach forensic labs. DNA evidence, clothing and blood samples are not taken care of in the best way which end up in these evidence losing their values. Lastly, the red tape system in the police department has always stopped the development of proper infrastructure.
  • Dark Spots and Helpline- even though we live in a developing country but a lot of places in the country are still out of reach for help. These places are so isolated that they are out of the taxi, lack of other important services and lack of speedy replacement of faulty lights in these areas makes them prone to such violence. 
  • Fast track Courts- Supreme Court and High Court have directed multiple times to set up fast track courts for Cases of Rape. These fast track courts still look like a far way dream as the structure of the courts has not been changed much and the process to attain justice has always been very slow.

The National Judicial Data Grid has confirmed that more than 48% of all criminal cases get delayed because accused or witnesses do not show up for hearings, which leads to repeated adjournments. Trials then remain stalled at the stage of examination of various evidences. This is used as a weapon to delay the trials a lot of time. Often because of which, courts are forced to acquit accused due to lack of evidence or witnesses, since viscera, blood, DNA samples and other evidence get contaminated due to improper handling and lack of storage. With a lot of assault cases having known persons to victim as perpetrators, many end up in acquittals due to social or family pressure on victims or witnesses.

There is a need to make this problem visible because only that can make the fight against the problem more stronger and more assertive. Poor people only have this assertive voice as a means of privilege to fight against perpetrators and oppressive structure of the society and it’s a duty of all of us to hear that voice of the poor.

By Tushar Pancholi

An Insight into the Farmers Ordinance’s 2020- Advocate Govind Bali

Advocate Govind Bali on the new Farmers ordinance

The Farmer’s Produce Trade and Commerce (Promotion and Facilitation) Ordinance, 2020 allows intra-state and inter-state trade of farmers’ produce beyond the physical premises of APMC markets (Agricultural Produce & Livestock Market Committee established under the provisions of APLM Act.). State governments are prohibited from levying any market fee, cess, or levy outside APMC areas.

Though the government feels that the Farmers ordinance is a way to aid farmers but the farmer’s traders and middlemen feel otherwise, the new ordinance brings with itself some major changes like

  • The Ordinance allows intra-state and inter-state trade of farmers’ produce outside:
  • the physical premises of market yards run by market

committees formed under the state APMC Acts and

         (ii) other markets notified under the state APMC Acts. Such trade can be conducted in a ‘trade area’, i.e., any place of production, collection, and aggregation of farmers’ produce including:

  • farm gates,
  • factory premises,
  • warehouses,
  • silos, and
  •  cold storages.

But the definition is excluding “the premises, enclosures, and structures constituting the physical boundaries of

  • principal market yards,
  • sub-market yards and
  • market sub-yards

managed and run by the market committees formed under each state APMC (Agricultural Produce Market Committee) Act.

It also Excludes  

  • “private market yards,
  •  private-market sub-yards,
  •  direct marketing collection centers,
  •  and private farmer-consumer market yards managed by persons holding licenses or any warehouses, silos, cold storages, or other structures notified as markets or deemed markets under each State APMC Act in force in India”.

But what has led to the agitation is the exclusion of Mandis established under APMC from the definition of trade areas.

The government is firm on its stand that the conception of trade markets outside the Mandis would facilitate freedom of choice concerning their yield, while on the other hand farmers think that this provision will confine APMC mandis to their physical boundaries and give a free hand to big corporate buyers.  

They are steadfast believers that the APMC mandi system has developed very well as every mandi caters to 200-300 villages. But the new ordinance has confined the mandis to their physical boundaries, which in turn reduces the choice of trade which the government is advocating.

Another amendment has been made to the characterization of trader which now stands as –

“trader” as “a person who buys farmers’ produce by

way of inter-State trade or intra-State trade or a combination thereof and so, it includes processor, exporter, wholesaler, miller, and retailer.

“Any trader with a PAN card can buy the farmers’ produce in the trade area.” this amendment abolishes the role of the commission agent or arhatiyas , who as per the previous system had to acquire a license which is no longer required as per the new ordinance the protesting farmers think that license system verified the financial status of the arhatiyas and the new ordinance takes away the accountability which was accompanied by a licence.

Without a licensing system, there should at least have been perseverance on registration to at least have a database of buyers, that too integrated across states. However, this ceases to be the case. In an unequal market setting where most farmers are anxious to dispose of their harvested produce so that cash flows can be managed, including in terms of debt management,

  • will they be able to insist on same-day payment or document-based proof of delivery and payment that is due to them,
  • or will they even be able to find entirely new buyers that they can trust and give their produce to?
  • “may” legalese that was used in the Ordinance concerning registration requirements and compliance to some transaction modalities, it is not clear who will be monitoring or overseeing the trade transactions or at least be able to enumerate the players involved.

Incentivizing the Big corporates

The ordinance abolishes the fees which levied before and summed up around 8.5 % in the state of Punjab which was around a market fee of 3%, a rural development charge of 3%, and the arhatiya’s commission of about 2.5%. Protesting farmers think that the fees have been abolished to pass on the incentives to big corporate houses and are a step adding to the larger goal of facilitating crony capitalism.

Dispute resolution under section 8

Farmers have a legitimate reason to believe that dispute resolution mechanism as furnished under section 8 is arbitrary as it states that in case of a dispute arising out of a transaction between the farmer and a trader, the parties may seek a mutually acceptable solution through conciliation by filing an application to the Sub-Divisional Magistrate, who shall refer such dispute to a Conciliation Board to be appointed by him for facilitating the binding settlement of the dispute. Which the framers believe will be misused against them as the conciliation may end up being biased and corporate centric which in turn would abuse the dominant position held by the conciliator. the dispute resolution mechanism has been kept simple.

It visualizes that recovery of the amount and imposing of penalties will be possible by a 3-or 5-member Conciliation Board consisting of a Chairperson and equal representatives of both parties (farmer and trader). The fact that this has been restricted to a farmer and trader, is more practicable than all disputes arising out of the new trading transactions that have been allowed including between traders.

What is uncertain is if this SDM-led dispute resolution with this Conciliation Board with a 30-day time limit, followed by a Sub-Divisional Authority if needed with another 30-day time limit (with additional power to restrain the trader from undertaking further trade and commerce for any specified period), and an Appellate Authority consisting of the Collector or Additional Collector who are again expected to dispose of the appeal within 30 days, will be able to deal with the potential volume of litigation brought to their notice.

Certain questions arise on which the ordinance is not clear

  • where is the dispute resolution application to be made, at the place of residence of farmers, or where the trade transaction took place?
  • What kind of documentary evidence will be asked if unequal power relations result in the farmer not having any documentary proof of the transaction?

Prominently, it seems that justice to the farmer is conceptualized only as reimbursement to be made to the farmer at any amount that might have been fixed, depending on the power and relationships between the trader and farmer. Justice is not about any biased weighment for occurrence, or unfair classifying by the buyer, or unreasonably low prices that might have been fixed, etc.

Electronic trading

The Ordinance documents the electronic trading of scheduled farmers’ produce (agricultural produce regulated under any state APMC Act) in the quantified trade area. An electronic trading and transaction platform may (may being speculation rather than being definite) be set up to facilitate the direct and online buying and selling of such products through electronic devices and the internet.

The following entities may establish and operate such platforms:

  •  companies,
  • partnership firms,
  • or registered societies,

having permanent account number under the Income Tax Act, 1961 or any other document notified by the central government, and

  • a farmer producer organization or agricultural cooperative society.

The ordinance is facilitating companies as the farmers are not acquainted with the idea of electronics trading.

Question about the Constitutional Validity of the Ordinance

The Constitutional decorum of the Ordinance is being debated. It is not just about the legal question whether it is a state subject or a concurrent subject. Entry 26 of the Seventh Schedule of the Constitution of India in the State List is about Trade and Commerce within the state, but subject to the provisions of Entry 33 of List III (Concurrent List). Similarly, Entry 27 of the State List is about Production, Supply, and Distribution of Goods subject to provisions of Entry 33 of List III. Entry 33 of the Concurrent List is about trade and commerce in, and the production, supply, and distribution of industrial products, foodstuffs including edible oilseeds and oils, cattle fodder including oilcake and other concentrates, raw cotton and cottonseed and raw jute.

The question that arises is that the law passed by the Parliament will prevail and not the Legislature of a State if any provision of the latter’s is repugnant to any provision of the law made by the Parliament. Having said that, it is clear that Entry 33 of the Concurrent List is not exhaustive in its coverage of all kinds of “farmers’ produce”. The debate about it being a state subject or subject of the concurrent list is of utmost importance as the regime has been hellbent to change the quasi-federal system towards a federal system as they have been centralizing most of the economic revenue and distribution of revenue.

The Farmers (Empowerment and Protection) Agreement on Price Assurance and Farm Services Ordinance, 2020

The Farmers Agreement Ordinance creates a framework for contract farming through an agreement between a farmer and a buyer before the production or rearing of any farm produces. It provides for a three-level dispute settlement mechanism: the conciliation board, Sub-Divisional Magistrate and Appellate Authority. This further bar the jurisdiction of civil courts. Which in turn is violative of the right to seek legal remedy and in turn gives the impression that the farmers should settle for whatever they are offered rather than asking for their legitimate remuneration due.

Farming Agreements

The ordinance also provides for Farming agreements which shall have a minimum tenure of one crop season or one production cycle of livestock. The maximum period is five years unless the production cycle is more than five years, corporates who have rampant legal support through the big lawyers and law firms can easily dupe the farmer of his rights who does not have access to qualitative legal support.

Price of the product to be mentioned in the Agreement

The price of farming produce should be mentioned in the agreement. For prices subject to variation, a guaranteed price for the product and a clear reference for any additional amount above the guaranteed price must be specified in the agreement. Further, the process of price determination must be mentioned in the agreement.

The Price Assurance Bill, although offering protection to farmers against price exploitation, does not prescribe the mechanism for price fixation. There is valid apprehension that the free hand given to private corporate houses would lead to farmer exploitation and result in abuse which in turn would affect the livelihoods of the farmers.

The Essential Commodities (Amendment) Ordinance, 2020

Essential Commodities Act (ECA), 1955, The ECA has been used by the Government to regulate the production, supply, and distribution of a whole host of commodities it declares “essential” to make them available to consumers at fair prices. It gives consumers protection against irrational spikes in prices of essential commodities.

But the 2020 ordinance has introduced

  • The central government may regulate or prohibit the production, supply, distribution, trade, and commerce of such essential commodities. The Ordinance provides that the central government may regulate the supply of certain food items including cereals, pulses, potatoes, onions, edible oilseeds, and oils, only under extraordinary circumstances. These include:
  • war,
  • famine,
  •  extraordinary price rise and
  •  natural calamity of grave nature

which otherwise had agriculture products as essential commodities but now it is specified that government can regulate supply only other extraordinary circumstance,

  • Stock Limit the Ordinance requires that imposition of any stock limit on agricultural

produce must be based on price rise. A stock limit may be imposed only if there is:

  • A 100% increase in the retail price of horticultural produce; and
  • a 50% increase in the retail price of non-perishable agricultural food items. The increase will be calculated over the price prevailing immediately preceding twelve months, or the average retail price of the last five years, whichever is lower.

The Essential Commodities (Amendment) Ordinance removes cereals, pulses, oilseeds, edible oils, onion, and potatoes from the list of essential commodities. The amendment will deregulate the production, storage, movement, and distribution of these food commodities. The central government is allowed regulation of supply during the war, famine, extraordinary price rise, and natural calamity while providing exemptions for exporters and processors at such times as well. Which would, in turn, give unchecked power to the corporate houses who would now be controlling the prices.

This would in turn adversely disturb food security and facilitate exporters, processors, and traders hoarding farm produce during the harvest season, when prices are generally lower, and releasing it later when prices increase. It could undermine food security since the States would have no information about the availability of stocks within the State.

Special Thanks to Tushar Pancholi for the Research

Rhetoric of Article 21 and Extra Judicial Killings by Advocate Govind Bali

“I say this with all sense of responsibility: there is not a single lawless group in the country whose record of crime comes anywhere near that of the single organized unit called the Indian Police Force. Policemen in general, barring a few, seem to have come to the conclusion that crime cannot be investigated and security cannot be preserved by following the law, and it can only be achieved by breaking or circumventing the law “-Justice A.N. Mulla of the Allahabad high court

The regime of extra judicial killings or Fake encounters is growing at an alarming rate in India specifically in the State of Manipur and Uttar Pradesh. Though these encounters have a fancy in common public but they strictly defy rule of law. Imagining a predicament of execution of the accused without being bought on the trial would shake the conscience of the human rights law regime. These types of execution are termed as extra-judicial killing, where killing is done without the sanction of the law. It takes us back to times of the Hammurabi Code where justice was based on the principle of “an eye for an eye and a tooth for a tooth[1]. As advocates of Extra Judicial killings call it instant justice it shall be noted that if an Innocent is killed ,it is nowhere near justice ,as in one of his Address CJI Bobde “I do not think justice can ever be or ought to be instant. And justice must never ever take the form of revenge. I believe justice loses its character of justice if it becomes revenge.”[2] A reason often stated by the law enforcement agencies is of self-defense under section 99 IPC. What is often quoted that the accused tried to snatch weapon and attack us ,what raises a question is how can a handcuffed person snatch a tied weapon held by a lanyard as per the police protocols.

In Prakash Kadam vs Ramprasad Vishwanath Gupta,[3] the Supreme Court observed that fake ‘encounters’ by the police are nothing but cold-blooded murders, and those committing them must be given death sentences, placing them in the category of ‘rarest of rare cases’.

In paragraph 26 of the judgment, it was observed:

“Trigger happy policemen who think they can kill people in the name of ‘encounter’ and get away with it should know that the gallows await them”. In the same case the plea that orders are orders was also challenged and the same was rejected in the Nuremberg trials further stating that if an order is illegal in nature then the Individual should refuse to carry out the same. Often wrongful imposition leaves such scars on the victim that never again in his/her life he is accepted as a member of the society.

Law enforcement agencies cannot be allowed to assume that they are the law themselves as justice is denied when rule of law is defied. It is symbolic of the cynicism with which the police themselves view the efficacy of the criminal justice system and the police, in this perception, are not just the accusers, but the prosecutor, the Judge and the executioner as stated in Jaspal Singh Gosain v. CBI.[4] Though it cannot be denied that the powers are bound to certain duty and hazards of occupation due to which certain laws shall prevail to protect them but this law shall not be the crusaders of injustice.

Article 21 is often killed or carried to miscarriage by law enforcement agencies who themselves are frustrated by the overburdened and snail like Legal system which takes years to deliver verdict and often majority individual walk out free but due to this prejudice Rule of Law has been violated, abused, tarnished and ripped apart many times. Again in Prakash kadam[5]  It was stated that “The guarantee by Article 21 is available to every person and even the State has no authority to violate that right. In line with the guarantee provided by Article 21 and other provisions in the Constitution of India, a number of statutory provisions also seek to protect personal liberty, dignity and basic human rights.”

Another judgement that need to be considered is Extra-Judicial Execution Victim Families Assn. v. Union of India[6] Which in a very descriptive manner stated

“Security forces and the investigating agencies, accorded with the task of investigating and finding of the evidence when assume themselves as the judicial authority and punishes the accused by way of such killing, will lead to the breakdown of the rule of law. Even while dealing with the “enemy” the rule of law would apply and if there have been excesses beyond the call of duty, those members of the Manipur Police or the armed forces who have committed the excesses which do not have a reasonable connection with the performance of their official duty would be liable to be proceeded against.”

 In Naga People’s Movement of Human Rights v. Union of India[7] It was held that “every death should be thoroughly enquired into” How would we separate killings by Kangaroo courts and the Law enforcement people as both are seen believing that they are the court themselves; The liberty of an individual is a matter of great constitutional importance in our system of governance. Three Articles of our Constitution and only three stand between the heaven of freedom into which Tagore wanted his country to awaken and the abyss of unrestrained power. They are Articles 14, 19 and 21[8].

Aatish Taseer resolutelysaid “India is slipping beyond the pale. It is unfathomable that the ancient Hindu horror at the taking of life, any life – the very same doctrine of ahimsa, or non-violence, that governed the beliefs of men like Mahatma Gandhi and the Rev Dr Martin Luther King Jr – should in our time be used as a justification for murder[9] The 262nd Report of Law Commission of India has recommended that the death penalty be abolished for all crimes other than terrorism related offences and waging war. But now the death penalty seems to be at the helm of the Police forces.As stated in People’s Union for Civil Liberties v. State of Maharashtra[10]that,

We are not oblivious of the fact that police in India has to perform a difficult and delicate task, particularly, when many hard-core criminals, like, extremists, terrorists, drug peddlers, smugglers who have organised gangs, have taken strong roots in the society but then such criminals must be dealt with by the police in an efficient and effective manner so as to bring them to justice by following the rule of law. We are of the view that it would be useful and effective to structure appropriate guidelines to restore faith of the people in police force. In a society governed by the rule of law, it is imperative that extra-judicial killings are properly and independently investigated so that justice may be done”

The Supreme court even laid down guidelines which have to followed Duirng encounters by Police in Peoples Union For Civil  v State Of Maharashtra[11];which state as following in brief:-

1. Tip-offs about criminal activities must be recorded either in writing or electronic form

2. If pursuant to a tip-off the police uses firearms and this results in death of a person, then an FIR initiating proper criminal investigation must be registered

3. Investigation into such death will be done by an independent CID team which has to fulfil eight minimum investigation requirements

4. Mandatory magisterial inquiry into all cases of encounter deaths

5. The NHRC or State commission must be immediately informed of the encounter death

6. Medical aid to injured victim/criminal and a magistrate should record his statement

7. Ensure forwarding FIR and police diary entries to court without delay

8. Expeditious and proper trial

9. Informing next of kin of the dead alleged criminal

10. Bi-annual statements of all encounter killings to be sent to the NHRC and state commissions by a set date in a set format

11. Disciplinary action against and suspension of a police officer found guilty of wrongful encounter

12. Compensation scheme under the CrPC to be followed for awarding it to kin of dead victim

13. Police officers must surrender their weapons for investigation, subject to rights under Article 20 of the Constitution

14. Also intimate family of accused police officer and offer services of lawyer/counsellor

15. No out of turn gallantry awards for the officers involved in encounter killings.

16. The family of the victim can complain to the Sessions judge if it feels that these guidelines have not been followed. The judge will take cognizance.

Though there is less collaborative proof that these guidelines are being followed religiously. The habitual act of extra judicial killings is a dark spot on the Indian legal System and Shall be rectified with conscious and well-conceived efforts

[1] (2020) PL (HR) March 90

[2] https://timesofindia.indiatimes.com/india/justice-must-never-ever-take-form-of-revenge-says-cji/articleshow/72420770.cms

[3] (2011) 6 SCC 189.

[4] 2018 SCC OnLine Del 6988.

[5] (2011) 6 SCC 189.

[6] (2016) 14 SCC 536.

[7] (1998) 2 SCC 109

[8] Quoted in Minerva Mills Ltd. v. Union of India, (1980) 2 SCC 591 : AIR 1980 SC 1789 (1911).

[9]Anatomy of a Lynching”, The New York Times(April16,2017), https://www.nytimes.com/2017/04/16/opinion/anatomy-of-a-lynching.html.

[10] (2014) 10 SCC 635

[11] 1998 BomCR Cri,

From Destiny to Triumph- Govind Bali’s Journey at Gd Goenka University

This article solely represents my personal views about the place where I spent five years of my life, and how I got into the GD Goenka university.

The journey started after I applied from GAT(Goenka Aptitude test) To get admission is school of law , far from reality I never knew what law school would be like living in a mirage of order!order! and court room dramas I thought law school would be full of dramatics with words but reality is far beyond that.

I have no hesitation in saying I have studied in one of the premier institutions of the country with best in class infrastructure and faculty, there are many firsts which I was part of in school of law some of them being

  1. The first moot being organized
  2. Establishing the legal aid cell/Committee
  3. Establish and conducting the largest constitutional law quiz who’s name was coined by me Prashnotry.
  4. Performing in the Suraj Kund mela with the team in Nukkad natak
  5. Organizing various legal aid camps and Programmes
  6. Hosting Late Sr.Adv Ram Jethmalani on the Law day celebrations
  7. Winning the first moot court prize of best memorial at Bhara university which is the first moot court team trophy For School of Law
  8. The cultural evening at the Moot court
  9. Coming seventh at the prestigious  henry dunant moot court competition
  10. Being part of the first team to participate in Jesups international moot court
  11. Handling the Social media of school of law and moot court for almost 4 and half years
  12. Winning consecutively for five years every debate competition organized by Board of Student activities
  13. Winning the best speaker at Lancaster university

The list goes on and on and I would like to state it on record that these would not have been possible without the guidance of my Mentor Dr Dakshita Sangwan, who scolded me not for being wrong but for not being perfect. I remember instances where while preparing for the national quiz and me being the quiz master we spent days just deciding on the poster on the quiz as it had to be out of the box, often ending up in a debate on constitutional and legal issues I developed because of her constant guidance and scolds , I guess I am the student who has been scold the most by her and the worst by her but she never gave up on teaching us the art of mooting I and Manisha(my all time partner in mooting and the one i can imagine my law school life without always in the library ) attended most of the moot courts with our memorials being scrutinized by her  and mind you we stood 3rd in most of the moot courts that we participated in,In my law school journey I have done around 3 moots per semester on an average barring the final year due to obvious reasons. I remember me being on the hospital bed and a huge law commentary on my side and getting a call from mam saying I should take rest while I was adamant on discussing the legal points of the moot  and upcoming quiz though my health did not support and be had to call of the moot , I have lucky to wonderful friends and teachers and great juniors who were there when we had to do wonders. Teachers have made me a well-read person as I remember Pankaj Awasti Sir giving new legal discussions ever now and then and pondering upon them I guess I spent most of my law school life the library or mooting, the grilling he did in the pre moots was extra ordinary. In my journey of Law school Shanta Kumar Sir and Laxmi Mam played ann important role too as Sir entrusted we with various responsibilities which we held by me for long one of them being managing the media and Public relations in various and me being part of the three student delegation to the Global Law deans forum held at Symbiosis Pune where I meet the legend Ram Jethmalani for the first time and I remember telling him near the dinner table where he was sitting that “sir you retired too early” to which he said why and I replied “sir I wanted to fight a case against you “ and to which he replied you man books have the power another thing is asked him was sir if I ask questions the government calls me antinational to which he said “oh don’t give a dam about them,keep on speaking”

I want to quote a quotation “Wonders don’t happen at wonderful places , they have with people who want wonders to happen”. And believe me School of Law Gd Goenka university has those wonderful people in the form of Teachers, Students and certainly the administrative staff  at whose helm we were always there while conducting any Programmes the team directed by Ram Prasad Sir and Managed by My inspiration Major Sharma I have never seen his worried with all the work he manages always doing wonders and believing in  innovation

I want to give a special mention to Bhrahmanand sir the coordinator who always argued about my small size photo on the admit card and helped with all the lists. My first mentor was Samridhi Mam who is now the undergraduate leader and she motivated me to keep going on during the first semester when I was not keeping well. There are certain people you genuinely care for you and one of them was Dawra sir the best criminal law professor I have come across he often called be Justice Bali and asked me how things were going on and always had a smile on his face and not to forget Simple mam who always told me to be safe with my words on social media and was concerned about my safety and how I forget the well-read professor of Company law who had the latest cases on his tips Shreyash Vyas Sir with his famous line “dikkat mein kami toh nahi hai” I was under the supervision of Priyanki Mam for the Public relations task for a good sum of three years and she was perfect with words and Rakesh sir was well versed with the practical aspects of law while Ajay sir was the strict and principled teacher.

The journey of university is not complete without various events that took place and Ramandeep Mam and Anandita Mam chose me as the host every time well I must say the stage became my girlfriend because I was always engaged with the stage with most of the unscripted anchoring and hosting the University fest   I could be recognized easily as being the one managing the stage and Often being Praised by Tanuja Mam for handling the stage will she is the Dean Student welfare a women of perfection who successfully conducted under her supervision the first Marthon and many other major events and How can I not mention Sareena Mam now Dr.Sareena who always said so you have come matlab debate is done.

The hostel management and staff are the ones I am indebted too and believe me you won’t find a better place trust me when I say this because I have visited a lot of universities for Moots and stayed at their hostels. With a doctor available 24/7 it’s a good place and yes I believe I have triumphed my destiny at law school because of the University and the Students.

It’s hard to find friends who are there to take you on an ambulance ride 2 hours before the exams and I am Lucky I had Soubhik Amoogh and Shivansh by my side along with others who were there when things were bad. I had a wonderful class with Payal being our all-time teacher before exams and Praagbir the event photographer I have a lot of memories to share and this journey would not have be possible without GD Goenka.

Similing Beauty at 72 -My choti Dadi

No life can be lead without appositive approach and same is the way my choti dadi works always happy and smiling.

Things can be learnt from every elder and I would narrow down few things I learnt from her

I was in class 6th and a tragedy had stuck our family dadi was really strong and use to deal with things in a positive manner while everyone was worried he never let worry cross her face

  1. I learnt from that incident that at times to keep the family going you have to keep your worries aside and give courage to everyone around.

There are specific reasons that’s I am not mentioning the event which lead to this.

I have learnt another thing from her which is bit different I have often seen and observed her saying “je nahi kha hunda ten a kha,bimaar ni hona”

Which means if you cant eat don’t eat as there is no point getting ill

  • I learnt that financial loss is no loss while if health is lost everything is lost

She has always been smiling even in the toughest situations as I remember she was operated and smiling while babaji was crying

  • I learnt from this that the more you think of pain the more you feel it

Dadi ji plays an important role and believe in culture and heritage she always tell us that pind/village is the place of our ancestors and should be preserved.

If smiles had a synonym to human personality if would say it was choti dadi ji

She has always said “change change kaam karo” Always do good deeds

  • From which I learnt that karma plays an Important role

I can keep on writing but for now this is all   

Gorgeous at 75- my grandmother

A family can never be managed alone. For all the sacrifices made by a man have to supported by the Lady of the House, I am writing today about my grandmother whom I called “Badi Mummy”

There are many things one can learn from her but I will be narrowing down to fe.

She  belongs to large joint family wherein she was brought up by her mother .

One thing I learnt from her is that confidence can make you win any situation

Though she does not know how to read English she is often seen reading one as if she has read thoroughly

  1. I learnt from her that the look on your face and charm in your eyes can make you win the situation.

Always speaking theath (pure) Punjabi I learnt from her that purity of language gives you an upper edge

 2.  This made me learn no matter what you do the best in it

She enjoy being well kempt with her hair black and nail polish on her nails and once asked her “tussi hamesha tayar kyun rehne aa” To which she replied “hamesha tayar rehna cahida aa” I don’t know what others opinion of her is but I find her to a strong lady with her own set of belief

She might forget her medicines but she has a strong memory when it comes to giving away gifts to closes ones

And a middle class housewife she had her own struggles and are often reflected in her words but now she’s changed

3.I learnt from this that time never stays the same adopt as better things come your way   

Never have I seen her waste anything and I remember when use to finish the food in restaurant even though she didn’t feel like “when asked not to do it “She would reply saying “paisa te appne hi lagge aa”

4.Which means its your hard earned money which has been used don’t waste it.

So as time flies she I would like you all to know that in her memory there are thousands of marriage and folklores which are in themselves a wonder

कभी मैं भी मोहब्बत लिखा करता था

कभी मैं भी मोहब्बत लिखा करता था।
उसकी जुल्फों को घनी छांव और उसकी आंखों को गहरा समंदर कहता था लभ उसके मखमल से लगते थे और मुस्कुराहट उसकी जन्नत सी लगती थी।
फिर जिंदगी में दौर आया कि मोहब्बत इंकलाब होने लगी ।
उसकी जुल्फों की जगह संविधान की डिबेट लेने लगी।
मजलूमओ के दुख लगने लगे टूटे दिल से ,और इंकलाब से मोहब्बत सी होने लगी।
उसकी आंखें और उसकी जुल्फए खोने लगी।
रैलियों में जाता था जब मजदूरों के लिए आवाज उठाता था जब एक अजीब सी मोहब्बत महसूस होने लगी।
उनकी बाहों में नामोशी थी एक अजीब सी खामोशी थी ।
बांट रहे थे लोग मुझको कभी कॉम के नाम पर तू कभी,जात से पूछते थे नाम मेरा।
मगर इंकलाब से यू मोहब्बत थी कि कोई धर्म पूछता था तो आजादी बतलाता था कोई कौम पूछता था तो हिंदुस्तानी बतलाता था।
मैं अपने इंकलाब के साथ रोज मोहब्बत के पल बिताता था।
©Govind Bali 6 June 2020

Emotions of Old Man – Chote Dadaji

When life full of adventures and family has to venture emotions do play a large role to balance out the situation this article is dedicated to chote dadaji the emotional pillar of the family whom I call BABAJI

They are million things one can learn from him but I will be summarizing only a few

Around 2017 we were sitting in the company office and Babaji called for the company ledger and started calling out the names of recoveries one by one till the end which were already signed and put in the ledger .

I asked him “Babaji tussi baar baar kyun check karde aan” which translates to why do you check again and again to which he said checking again and again which make it easier to prepare for the audit “baar baar check karan naal audit saukha hojauga “

  1. The lesson I learnt was that few extra minutes spent on the daily work can actually save a lot of time in the end

I was around 7 years or 8 years old travelling in Indica with babaji and Dadiji and I said I want have lichi and you won’t believe it after reaching home he travelled on his cycle to get lichi for me .

When I wondered why would he do that in the summer sun I realized that he believed that feeding us well is actually running a good family.

2.I learnt from him that the more you invest of relationships and family the stronger the bond is and in the end it’s the family who will stand with you and no one else

Even today from 7 A.M till 9 A.M he calls all relatives from Canada to Delhi to Shilong To Gondpur to take an account of their wellbeing that when you realize how much he values the family.

I remember when I chose complete my final exams of law and called him and he was overjoyed deep within he felt accomplished

He has always loved his siblings and the village ,he is respected as an elder in the village and at times he is called for dispute resolution between families staying around I asked Him “babaji pind ki aa” to which he replied  “sada vajud te pechokad ki nishani aa”  it is our history and evidence of our existence

If you meet him he is a fun loving  jolly man who hates wasting food and resources 3. I learnt from him that investing in relations if much more important than other deeds and he also said once

“riste banda nu mazboot karde aa” relations make a man strong

He has a taste for poetry though no one officially know that but in his boyhood enjoyed poems and literature

Often he ends up in tears in happy moments from which one can make out how emotional he his , and how loving and caring he is when it comes to the grandchildren though we are often scolded for spending on junk food and in the end he makes homemade sweets for us as a gesture of love.

He loves is better half the most and I have learnt from him

4. You need to respect your companion they are the ones who complete you and they are the ones who were there for you in the toughest times

As I have been told my his younger sister that he was the one you use to control grategrandfather when he lost his cool and he knew how to deal with it without bringing emotions into it

5.This taught me no matter how much you respect emotions sometimes you need to act tough.

I have many more things to write but for now this is it

Old Man and His Principles – My Grandfather

 I would talk about “BADE PAPA(My Grandfather ) he was an audit officer with government of Punjab and conducted  audits for various sugar mills, factories and other government run institutions.

They are a lot of things than one can learn from him and one of them is how to be principled and honest, the position he held had many opportunities of  taking bribe and once I asked him

bade papa tussi kadi corruption kiti, jad tussi service vich si”

Which translates to Grandfather have you ever taken bribe

To which he replied

“assi kadi gandh ni khada, apni kamayi hamesha imandari naal karni cahidi aa”

Which translates to I have never taken bribe, and you should always earn honestly

His statement taught me

  1. If you have strong principles and chose the path of honesty you live a happy life and can sleep peacefully at night, without having the regret of doing something wrong.

Another incident that I remember that was narrated to us time and again was , when bade papa refused tamper the audit records of a factory and highlighted the corruption there in , the factory belonged to the family member of a minister in power (categorically not naming the party) he received various threats and was summoned at home, for around a week but he refused and never signed the report which was tempered with.

2.Lesson that I learnt from this incident was , that no matter how big the other person is in his demeanor but never give up your principles this incident has a special place in my life and help be keep myself content while finding situation which are dubious in nature

Bade Papa is an Arya Samaji which means he does not believe in idol worship and till now I have not seen him willingly going to a temple though he does pray, I once asked about his idea of God to which he replied

I”Change karam , te gareban di seva hi raab aa” which translates to good karma and helping is the poor and those in need is actually being with god and close to him, this incident dates back to 2008 when I was in class 7th and seriously ill.

3.I learnt from this that always work towards the society and help people ,no matter how much milk you pour on an idol they won’t drink it.

If dedication and devotion had a definition babe papa fit in it explicitly , he practices yoga from past 30 odd years and till 2015 when he was around 75 years old he could still perform a head stand.

Though he is a man of few words, he is staunch believer that though speak less but speak what weighs the most.

He has a rigid self-control which is like line on a stone if he has decided not to do something , no one make him do it.

Bade papa also has intense  will power he once meet with an accident on the ladies cycle he rides till date, he was badly injured and hurt.

I asked him on phone “Bade papa ki hoya, kinni sat lag gayi” ,he replied “kuch ni ek do charitan aa” This translates to when I asked him about his injuries he simply said oh it nothing just few scratches. And to my surprise he has never had a painkiller in his life , nor has he ever taken any medicine for fever, apart from his cataract operation he has never visited a hospital willingly.

4. looking at his will power I asked him, do not get pain, to which he replied, “jinna mehsus karongay unha hi dard hoyega” what he meant to say was if you think too much about pain it would be painful, if you generously ignore it pain will fade away, pain, happiness, sadness is all in our mind.

This incident is a really astonishing one which was narrated to me by my father when I was in my teenage years and was stressed about things,

My Bhauji  was getting married and all the arrangements were made outside tents were set up and a sudden storm and rain destroyed the arrangement while everyone was tensed about what would happen bade papa was peacefully sleeping.

I asked him about this incident and asked his as to how could he sleep so peacefully even in such a situation to which he replied there was hardly anything that could have been done at that point of time, it was better to sleep over it and work out a solution in the morning.

5.This taught me that at times you do need to sleep over a situation and wait for the right time when you can find a solution.

Old man and his wit – four lessons of life

The grey haired gentleman in the picture above is my mother’s mamaji around six months back I had an opportunity to meet him in his village, where he is respected as elder of the village, and man with great wit.

I wanted to write this piece long back but it followed up to be written today, as time flies so does the body fade but what lives on is the joy of living while a brief talk with him he taught me few lessons of life and told me that these things will always help you I tend to write this piece to bring forward to you the lessons that I learnt in those brief 30 minutes.

He started by saying “tu Vada banda hogaya aan sanu kithe yaad rakhna” which translates to you have become a big man why would you remember me ,to which I replied “bazurgan nu kadi bhuliya ni janda, ek asi hamesha thwade Toh chote ha.” Which translates to elderly members are never forgotten the young ones are always indebted to them.

After this discussion that we had he took me to his room where lay a small bed with two pictures on the wall, pointing at one of them he said “kadi asi vi Jawan hun de si” which translates to that there was a time when we were also young.

1.In the first lesson he said you will not remain young forever as your body will fade but your soul should always be youthful and ready to help others.

2. While narrating story of the past how he was taken to choose grooms for the daughters of the village he said never have the greed to get something from the person you do good for as and when the time will come you will realise the good deeds that you did are paying off

3.While rampantly talking about the past present and the future see all of a sudden said do what you can but in the end what is destined to happen will happen his exact words were “jo hona a oh hoke hi rehna”

Then he further told me that once is leg broke , and the villagers took him to the hospital got him treated and paid him a visit everyday he said this was because of his selfless karma.

4.The last lesson he taught me was be confident in what you do as the other person does not know whether you are right or wrong in the end it’s your wit and wisdom that will help you succeed.