Sans Law and Culture...

Sans Law and Culture…Apologies…

Sometimes (in fact most times) I wonder the futility of staying back
As much as I wonder the futility of running away
For it’s like an unending unstoppable fall from a cliff
Into an abysmal pit
Staying back or running away might change the track
But not the power of gravity.
So I let myself fall.

But sometimes (these are really sometimes) when I feel the turbulence in my stomach
That falling produces (same like the downward journey of the giant wheel)
And the vomity feeling that ensues
I feel like staying back
Or running away.
Staying back where
Running away where
Is there a place without the power of gravity
Without tall cliffs and dark pits
Where I take charge and say yes to no and no to yes
Where eyes speak like smiles when mouths choose to stay mum.

I like the blue oceans that I have never seen
And the naughty tides that I have never met
The way I like eyes without secrets of falling-feeling
And the smiles without choked words
And the footsteps that sometimes (these are some sometimes) scare me
And sometimes (in fact at all times) soothe me to a sleep without nightmares.
This world calls me
But I don’t know its way
Staying back? Running away? Or keep falling?

ABOUT THOSE E MAILS CARRYING ‘GOOD LUCK’ OR THREAT OF ‘DIVINE DISGRACE’

Almost every one, who has an email id, must have received mails promising good luck on same being forwarded to number of other people or threat of divine disgrace if not forwarded. Some times they also promise better luck depending on the number of people to whom such mails are forwarded. Following is the extracts of relevant portion of one such mail:

Send this (mail) to at least 5 people and your life will improve.
1-4 people: Your life will improve slightly.
5-9 people: Your life will improve to your liking.
9-14 people: You will have at least 5 surprises in the next 3 weeks
15 and above: Your life will improve drastically and everything you ever dreamed of will begin to take shape.

It must leave your hands in 6 MINUTES. Otherwise you will get a very unpleasant surprise. This is true, even if you are not superstitious, agnostic, or otherwise faith impaired.

Some times the threat will be more severe like the one (extract from another mail) below:

If you do not send this mail to anybody, your life will be a living hell.
You have 5 days to send this letter to at least 1 person.
You can send this to as many people, as you want to.
I am warning you.

Such promise of good luck or threat of divine disgrace comes along with some concocted stories, at times, stating that God appeared in the dream of some one and instructed him to spread it to all…and the chain should not be broken etc., etc.,

What is more disturbing is that people who are well educated and better qualified than the ordinary lot forward such emails. Some times I receive such emails from friends who have graduate or post-graduate degrees in law. What they are not understanding is that forwarding such mails would amount to an offence under section 508 of IPC. It reads as follows:

Section 508. Act caused by inducing person to believe that he will be rendered an object of the Divine displeasure. - Whoever voluntarily causes or attempts to cause any person to do anything which that person is not legally bound to do, or to omit to do anything which he is legally entitled to do, by inducing or attempting to induce that person to believe that he or any person in whom he is interested will become or will be rendered by some act of the offender an object of Divine displeasure if he does not do the thing which it is the object of the offender to cause him to do, or if he does the thing which it is the object of the offender to cause him to omit, shall be punished with imprisonment of either description for a term which may extend to one year, or with fine, or with both.


Some high courts have interpreted the provision very narrowly by emphasising more on the words “by some act of the offender”. According to the said interpretation, no act would amount to an offence under this provision unless there is an attempt to induce the person to believe that “he or any person in whom he is interested… will be rendered by some act of the offender an object of Divine displeasure” (emphasis supplied). According to this interpretation, mere act of forwarding such mails would not amount to an offence. But to construe so, is to render the words “will become or” meaningless. Thus, if construed in proper perspective, such act of forwarding emails carrying threat of divine disgrace would amount to an offence under this provision.

Forwarding such emails may be an innocuous or innocent act but what is to be noted is that “ignorance of law is not excusable”. An offence is an offence whether done with or without the knowledge of law. Even an illiterate cannot plead ignorance of law. How about ignorance of law by law graduates and post-graduates!

Whether one considers act of forwarding such mails as an offence or not, such acts certainly falls below the constitutionally expected standard of behaviour. Constitution imposes a duty on every citizen, inter alia, “to develop the scientific temper, humanism and the spirit of enquiry and reform” [Article 51-A (h)]. Spreading superstition by threatening the receiver of email that he/she will be subjected to divine disgrace unless the same mail is forwarded to others is contrary to the constitutional expectation that one shall develop the scientific temper, spirit of enquiry and reform.

Religious belief and faith in god is one thing, spreading superstition is yet another. The former has been accorded the status of fundamental right in the Constitution of India, whereas the latter is contrary to the fundamental duties imposed on the citizens. One should not mislead the innocents who are God fearing also.

Thus, before forwarding such emails, there is a need to pause and think.

Baldev Singh v. State of Punjab (2011): Blurring the category of 'Special and Adequate Reasons'

The two-judge bench of the Supreme Court in Baldev Singh v. State of Punjab (The judgment can be found here) delivered the judgment which can have serious long term consequences for the criminal justice system in India. The core issue before the court, as already discussed on the blog, was whether it is appropriate to mitigate or lessen the sentence of three appellants who have been convicted for gang rape by the lower and high court. The appellant’s contention, in their affidavits, was that the ‘parties have entered into a compromise’ and now there is ‘no misunderstanding between them’.

The Supreme Court observed that the “incident is an old one” and the “parties have themselves entered into a compromise”. The learned court found this to be a reason ‘special and adequate’ enough to uphold the conviction but reduce the punishment of the appellants to the period already undergone i.e. 3.5 years. However, the court enhanced the fine under the section and directed that each of the appellant will pay a sum of Rs. 50, 000 to the victim within a period of three months.

The law of rape under the Indian Penal Code, 1860 (IPC) provides for a mandatory minimum punishment of seven years on conviction in any case of rape. Further, after the 1983 amendments to the Code, which happened in the wake of tragic Mathura rape case, there is another category of aggravated forms of rape that has been added under clause (2) of section 376 wherein the mandatory minimum punishment has been enhanced to be 10 years and fine and the punishment may go up to life imprisonment depending upon the circumstances of the case in issue. The offence of ‘gang rape’ forms the part of such aggravated form of rape under clause (g) of section 376 of IPC. Therefore, the present case falls in the category of rape wherein a maximum punishment for life can be given but a minimum sentence of ten years along with fine is mandated by the section itself.

It may further be stressed that the entire category of ‘special and adequate reasons’ is provided to the court to give lesser punishment than prescribed but the same must be done by giving 'Special and adequate reaons'(proviso to section 376). This category has been carved out so as to ensure that there may be an occasion where the court might in the interest of justice desire to give less punishment. But to ensure that this should not become a way out to destroy the very idea of mandatory minimum punishment, the legislature imposed a requirement that such cases must be exceptional ones and that's why the requirement of 'Special' as well as 'Adequate' reasons to be given for any relaxation in punishment. The scheme might be obfuscated if this category of 'special and adequate reasons' is not understood as an exceptional one. Due care and caution needs to be exercised to distinguish the cases where the proviso of ‘special and adequate reasons’ can be evoked and where it ought not to be invoked. This care must be taken by the judges as if the category of ‘special and adequate reasons’ is blurred then there will remain no meaning to the finer distinctions between the categories dexterously crafted under the IPC.

Keeping the above law in mind one finds it difficult, if not entirely fails, to comprehend the reasons that the court has given for invoking the proviso and reducing the punishment of the convicted offenders to already undergone three and a half years, instead of the minimum that is prescribed for and awarded by the high court for the offence of gang rape.

The offence of rape is a non-compoundable offence under the Criminal Procedure Code, 1973 (CrPC.). This means that the law specifically disallows the parties to enter into any kind of compromise. This follows the fundamental principle of criminal jurisprudence that crime is an act which is against the society or the state. CrPC permits certain offences to be compounded if the parties decide the same. However, the offence of rape is clearly and unambiguously a non-compoundable offence.

So here we go: The Supreme Court of India in Baldev Singh is invoking the proviso and finding it 'adequate' to lessen the sentence even when the law in CrPC explicitly and in clear terms prohibits the same. Second, mere 'compromise between the parties' is taken as a 'special reason'. The judgment does not even mentions or investigates that why, and under what compelling circumstances, such compromise was effectuated? The court merely relies on the affidavit in the judgment. Will this decision not provide, for the well-off accused of rape, to somehow ensure that the victim enters into a compromise and then they may reduce the quantum of punishment for the most horrendous act committed against the integrity and autonomy of woman's body? In the days when courts write 5000 pages judgments to provide reasons for issues such as 'Whether Ram Lalla was born in Ayodhya?" all that the court finds fit to mitigate the punishment is that 'parties have compromised' without any further inquiry and merely in three pages!

Baldev Singh v. State is setting a dangerous trend that even reasons which are patently in contravention with the law of the land can be both 'adequate and special'. So the category can be used effectively to diminish punishment for rape even when the reasons are themselves illegal! Further, it relegates criminal law to a mere private dispute settlement mechanism as far as punishment is concerned. This blurs the whole category of 'special and adequate reasons'. Time and again arguments for providing death penalty to rapists are raised. No less than a revolt is necessitated against a decision where the reasons of 'compromise between parties' in a non-compoundable offence are considered sufficient to reduce the punishment to less than half of the statutorily provided mandatory minimum punishment.

Taking judicial note of ‘compromise in gang rape cases’: Can it be a mitigating factor?

The offence of rape is one of the most heinous offences that affects not only human body but also reproductive health, mental health and social well-being of the victim. In a society like ours where there are strong customs and taboos regarding sex and sexuality, the psychological trauma that the victim of rape has to undergo is inexplicable. Rape is a serious offence in every civilized country. So is the case in India. It is punished very severely. It is important to note that there is a demand to punish the offence of rape with death. An offence of rape is not compoundable in our legal system. In such a scenario, if the victim of rape and rapists reach a compromise, whether the courts can take judicial note of such a compromise in the course of administration of justice is an important question that arose in the wake of the recent Supreme Court judgment delivered on February 22, 2011 in Baldev Singh v. State of Punjab [Criminal Appeal No. 749 of 2007].
Section 376 (1) of the Indian Penal Code provides that an offender of rape shall be punishable with imprisonment of either description for a term which shall not be less than seven years but which may be for life or for a term which may extend to ten years and shall also be liable for fine. However, the statutory minimum of seven-year of imprisonment may be reduced further by the court under the proviso to clause (1) if there are “adequate and special reasons” in the case. However, an offence of ‘gang rape’ has been considered very grave and accordingly it has been subjected to more severe punishment under clause (2) of section 376. An offence of gang rape is “punishable with rigorous imprisonment for a term which shall not be less than ten years but which may be for life and shall also be liable to fine.” Further exception has been made in the proviso to clause (2), which states: “Provided that the court may, for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment of either description for a term of less than ten years”.
There exists sentencing discretion under section 376. Judicial discretion has to be exercised on sound reasoning. Where there exists sentencing discretion, necessarily all the aggravating and mitigating factors have to be fully taken into consideration in passing an order on sentencing. Even in exercising the judicial discretion under proviso to clause (2) of section 376, it is imperative that the courts should take into account all the aggravating and mitigating factors and only when the mitigating factors are found “adequate and special”, punishment can be reduced to less than statutory minimum of 10 years.
In Baldev Singh v. State of Punjab (supra), the apex court reduced the punishments imposed on the convicts of gang rape taking into account three factors: (i) that the parties have entered into compromise and they wanted to put an end to the dispute; (ii) that the incident is very old. It had taken place 14 years back, and (iii) the appellants (i.e., rapists) and prosecutrix are married (not to each other). Can these factors be considered as “adequate and special reasons” to reduce the punishment below statutory minimum?
In our country where judicial delay is not uncommon, the fact that the incident took place 14 years back may not be considered so special. Further the reason that the prosecutrix (and even the offenders in this case) has married to some one else and has two children seems to be extraneous and cannot be considered a special reason either. It partly echo’s the earlier decision of the Supreme Court in Ram Kumar v. State of Haryana [(2006) 4 SCC 347]. The third and the most important factor is compromise between victim and rapists. Can the court take judicial note of such a compromise notwithstanding the fact that the offence of rape is not compoundable?
This is an issue that requires much thought and deeper reflections. Perhaps, laying down hard and fast rule in this regard would not leave any scope for flexibility even to an extent it is desirable in exceptional cases. However, having regard to the facts and circumstances of the instant case, where the prosecutrix had been gang raped and beaten up by the rapists, it seems inappropriate to take judicial note of compromise reached by them after several years. It is important to note that compromise was reached not between the parties (as the court said) but between a complainant and convicts. It was reached not at the stage when the case was at the stage of trial; not even when the appeal was pending before the high court but when the further appeal was pending before the Supreme Court - nearly 14 years after the incident. It is not clear as to under what circumstances victim has consented for compromise after such a long time. Without having regard to these factors, the Supreme Court commuted the sentence to the period already undergone by the convicts (i.e., 3 ½ years). Thus, none of the reasons stated in the judgment seem to be “adequate and special” so as to warrant punishment less than statutory minimum. Such an approach adopted by the court in sentencing doesn’t serve the objectives of criminal justice system. However, this decision once again stresses the need for formulating ‘sentencing policy’, which can guide the exercise of sentencing discretion.