Opinion Pieces

Conviction Before Acquittal

This article was submitted to us by Sacchit Joshi, a second-year student at the Gujarat National Law University, Gandhinagar. Hailing from Mumbai, Sacchit is a passionate national-level athlete.

“Trials are intended, to make us think, to wean us from the world…”

A well-pitched courtroom trial is not a trial under which a man has submitted himself under the conscience of good law, equity, and justice. It is a trial, which envisages all the aspects of truth, evidence, assumptions on the framework of logic and reason; making a step towards a well-pitched and fair trial, the consequences of which would be good law, equity, and justice.

Globalization and the surge of liberal thought has opened new vistas for critical analysis and sought to question, what went unanswered or even unquestioned a century ago.

A by-product of the same is unwarranted criticism devoid of rational and in-depth analysis of the subject of criticism. Especially in a country like India, where mass media play a crucial role in framing public opinion or herd mentality, the fourth pillar of democracy has been a platform for the voices of the unheard and done good to the society. Having said that, the media, substantiating on their soft power has been detrimental to good law, equity, justice when it comes to conveying their own view on an episode concerning the legal fraternity, thereby, misleading masses who have virtually no access to first hand information of the episode nor any means for a counterview. It is at this juncture that, media assumes the role of a court of law and conducts its own media trials. Taking a leaf from the recent Bombay High Court verdict on Salman Khan’s case controversy – which assumed a virtual violent form as manifested by the people of the country taking to social networking and micro-blogging sites to vehemently criticize the High Court’s judgment. Hash-tags and posts flooded the social media, protesting against the failure of the judiciary to convict the actor. However, an imperative point to be noted is that, the opinions, anger, manifestations put forth were based solely on media, newspaper reports, and articles. Newspapers and other media profusely criticized and projected an image of a wrongful or a sinful act committed by the Bombay HC. The media through its process of media trial had successfully convicted the actor in the eyes of the people of this country, even before he was practically tried before a court of law. Now, the media glides into the domain of judiciary, subsequently sitting judgment over an issue and thrusting the same on the people of India without giving them a counterview. The media not only flouts ethical standards of doing injustice to a person even before the person’s guilt is conclusively established, but also goes against its primary focus of providing pure information bereft of the journalist’s bias. In line with the same, battling the sandbox created by the media, Justice Joshi (presiding judge of the case) stated that he (Salman Khan) could not be convicted by popular perception; careful analysis of the evidence collected is required.

The people of India had genuinely believed that the actor was at fault no matter what and, wanted to see him convicted and would have accepted no decision in deviance of that, irrespective of and in stark contradiction to the formal rules and principles of logic and reason. The court proceeding had boiled down to people’s emotions rather than the evidence gathered and the submissions from either side. The media plays a vital role in creating solid emotions, opinions, and exercises that control as a mother might have over the child in the formative years.

The growing involvement of the media in sensitive issues without due understanding of the subject and devoid of adequate thought process could lead to moulding of popular notions in a catastrophic manner, thereby, putting the institution of courts at stake.

Coming back to the Bombay High Court judgment, a careful analysis in the study of the 305 page judgment reveals that evidence on which sessions court had implicated Salman Khan with the said charges could not be proved beyond reasonable doubt in the HC. Moreover, the witnesses had altered their testimonies multiple times, subsequently, leaving the HC in a state of ambiguity. The court also observed that the investigation for the said case was conducted in a careless faulty manner with scant regard to the established procedure laid down by law. Contrary to the mass opinions, the courts in all proceedings have to proceed and dispense justice in accordance with the evidence submitted before the court, collaborated with the testimony of the witnesses and submissions therein, in line with the established procedure of law. Any contravention to the same would be doing injustice to either person, leaving the organ of judiciary in utter chaos and subject to criticism from the legal fraternity. Thus, the focal point of failure or the burden of inflicting injustice rests on the prosecution’s office for not doing justice to the assigned work.

The underlining theme of the same is that the threshold of innocence or guilt shouldn’t be subject to influence by the media or a bunch of journalists with no or very little importance to facts gathered in the framework of logic and reason or the procedure established by law, but are rather led by instinctive or emotional analysis of right and wrong. Lastly, I would conclude by saying that not all the persons acquitted by a court of law would be innocent. Nevertheless, one needs to demarcate a line as to who gets to decide what is right and wrong. However, having a construct or a structure in place minimizes the scope of error and compels the judiciary to dispense justice in line with the established procedure and reasoning, although it still does not make the sanctum impenetrable.

To sum it up all, Gandhi once said, “There is a higher court than the courts of justice and that is the court of conscience. It supersedes all other courts.”

DISCLAIMER: The views represented above are that of the author alone and do not reflect the views of the magazine, Ergo. No legal liability or other responsibility is accepted by or on behalf of Ergo for any errors, omissions, claims or statements on this site, or any site to which these pages connect.  We accept no responsibility for any loss, damage or inconvenience caused as a result of reliance on such information.

Save The Internet

This article was submitted to Ergo by Vinay Narayan, a third-year student of the Gujarat National Law University, Gandhinagar. His interests, outside of Law are food & sports, which he relishes when he watches football, as an ardent supporter of Manchester United Football Club.

Unless you have been living under a rock, you will have heard of Facebook’s Free Basics. Actually, even if you have been living under a rock Facebook would have managed to ensure you found out about it. That is how extensive Facebook’s advertising campaign has been. Full-page, front page advertisements in the leading national dailies, huge hoardings in central locations in metros and, of course, the timely daily reminder of how many of your friends have “voiced their opinion about free basics” in your Facebook Notifications.

What is Free Basics? Well, Facebook says that “Free Basics by Facebook provides free access to basic internet services to a billion people all over the world. Free Basics makes the internet accessible to more people by providing them access to a range of free basic services like news, maternal health, travel, local jobs, sports, communication, and local government information.” If you think this sounds a little too utopian and too good to be true, you would be right. So what isn’t Facebook telling us? What are they really hiding behind the extensive campaigning and lobbying?

There is a wealth of literature on this issue and the links at the bottom of this page cover them adequately and so I will not go into them. The aim here is to simply ensure that you, the reader do not blindly sign up for Facebook’s Free Basics without knowing what you are really signing up for. To put this simply What Facebook wants is our less fortunate brothers and sisters should be able to poke each other and play Candy Crush, but not be able to look up a fact on Google, or learn something on Khan Academy or sell their produce on a commodity market or even search for a job on Naukri.[1]

What follows below are links to articles that show the real costs of Free Basics.

1. First off we have the joint statement that was issued and signed by 64 faculty members from IITs and IISc. They highlight the three following flaws:

  1. Facebook gets to decide what is Basic.
  2. Facebook will have access to all your app’s contents, which means all your data.
  3. It isn’t really free as the cost of the data will be built in to some other service by your mobile operator.

The statement with some explanation on each point can be found here: http://thelogicalindian.com/news/iit-iisc-faculty-members-issues-a-joint/.

2. For the lazy amongst us here is a video by AIB that very succinctly and humorously spells out the problems with Free Basics. Here it is: https://www.youtube.com/watch?v=AAQWsTFF0BM

3. Next we have the brilliant article by Mahesh Murthy that takes on each of the 10 claims by Facebook in their Newspaper ads and proceeds to debunk them one by one. Facebook replied to each of these and Mahesh Murthy then went on to take apart each of their replies too. The article can be accessed here: http://thewire.in/2015/12/30/facebooks-rebuttal-to-mahesh-murthy-on-free-basics-with-replies-18235/.

4. Prabir Purkayatha’s brilliant op-ed about why there is nothing free or basic about this initiative can be accessed here: http://www.thehindu.com/opinion/op-ed/nothing-free-or-basic-about-it/article8042334.ece/

5. These brilliant mockups give a very clear cut picture of what exactly would happen if Free Basics does come in to play. You can find them here: http://www.buzzfeed.com/sahilrizwan/make-the-ambanis-richer?utm_term=.jqpBBqDZ5#.rtKvvDAKQ.

The Telecom Regulatory Authority of India has extended the deadline till the 14th of January for the public to file in their opinions about Differential Pricing for Data Services. If the TRAI does allow Differential Pricing for Data Services, it would mean giving Free Basics the green light. It is an urgent request, on behalf of all the internet users, that you submit your opinion here http://www.trai.gov.in/ConsultationLogin.aspx?CONSULT_ID=20761&cid=1&qid=0. Register as a new user and submit your response.

Help save the internet.

[1] http://thewire.in/2015/12/26/facebook-is-misleading-indians-with-its-full-page-ads-about-free-basics-17971/.

DISCLAIMER: The views represented above are that of the author alone and do not reflect the views of the magazine, Ergo. No legal liability or other responsibility is accepted by or on behalf of Ergo for any errors, omissions, claims or statements on this site, or any site to which these pages connect.  We accept no responsibility for any loss, damage or inconvenience caused as a result of reliance on such information.

Are We The Impairers?

This article was submitted to Ergo by Shivangi Bajpai, a first year at NLU-Odisha, originally hailing from Jodhpur. She is a voracious reader, and writing poetry is one of her guilty pleasures.

In the Aftermath of  the release of the juvenile, accused of raping Jyoti Singh, in the winter of December 2012, Rajya Sabha in its winter session on 22nd December, 2015 subdued to the public pressure to pass the Juvenile Justice Bill and reduce the age of juvenile in India from 18 years to 16 years. The Juvenile Justice (Care and Protection of Children) Amendment Bill 2015 had already been passed by Lok Sabha in May 2015 and was pending in Rajya Sabha. Now, having been passed by the Rajya Sabha, it only needs President’s assent to become a law.

Under the proposed new law, those charged with ‘heinous crime’- for which the minimum punishment for an adult is imprisonment for 7 years- who is aged between 16 years old and 18 years old, can be tried as an adult. For this, a juvenile justice board consisting – a magistrate and two social workers, has been formed that would assess the mental age and physical capacity of the juvenile as well as the person’s ability to understand the consequences of the crime. The decision to try a person as an adult would then be ratified by the children’s court which would also draw up a plan for rehabilitation. If found guilty, a child who would be tried as an adult must then be ‘sent to a place of safety’ and shall be transferred to a jail only on his turning 21 years. Repercussions of the bill have not been considered when the bill was passed in Rajya Sabha with a voice vote after a walk out of Left parties which wanted it to be sent to a select committee. A number of Rajya Sabha MPs, including women, have expressed that the passing of the law was emotionally prevailed more than being driven to reform criminal propensities of the juveniles.

The law makers have totally resorted to the shortest path, it seems, to show from their conduct that they are doing something for women safety. This comes as a general realisation that the legal system does not stand on emotional backdrop but on reason.

Quoting Sitaram Yechury (CPM), who referred to Verma Committee and said: “Why are those recommendations being ignored? Regret that Parliament has missed an opportunity to consider such an important bill in a more dispassionate and scientific manner.” He too, along with various other MPs called for a select committee. Justice Verma committee in 2013 stood firmly against the lowering of the age criteria for juveniles accused of heinous crimes including rape. The former chief Justice of India, in his report said- “The Law is for general application and not for a particular case…And that sexual offenses are not necessarily for the purpose of satisfying the sexual lust. It is more an exertion of power, male domination and that covers many aspects.” To drive home his point, Justice Verma also said that the committee has followed proper research and analysis and thus is firmly against the lowering of the age of the juvenile and feels that there can be no debate about certain points in the report.
Drawing conclusion from Justice Verma’s report, we clearly see that the lowering of age of a juvenile was dabbed with emotion more than reason and is a result of urban lynch’s cacophonous cry for yet another bill not because of merit but because emotions run high. Drawing example from the Lokpal Bill, which turned out to be defunct, we should have taken our lessons but yet there is no harm done. Juvenile Justice Act shall bite us back, more specifically the youth of the country. This bill shall make sure that the misguided youth of the country, indulged in heinous crime where heinous crime is not just rape, does not get a second chance to reform and instead become hardened criminal because this bill leaves no scope for reform and is mainly driven by punitive propensities.

Apart from this, this part of the bill contravenes with the United Nations Human Convention on the Rights of Children, which India has ratified. The convention says that all those under the age of 18 should be treated equally. UNCRC mandates the age of a child to be below 18 years. By law, those under 18 are not allowed to vote, sign a contract or engage a lawyer because they are not considered mature enough to understand the consequences of their decision and this makes them a vulnerable category.

This bill leaves a wide valley of doubt about the role the law-makers are playing. Are they Reformers or Impairers?

DISCLAIMER: The views represented above are that of the author alone and do not reflect the views of the magazine, Ergo. No legal liability or other responsibility is accepted by or on behalf of Ergo for any errors, omissions, or statements on this site, or any site to which these pages connect.  We accept no responsibility for any loss, damage or inconvenience caused as a result of reliance on such information.

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