

# FLARE | OPINIONS (LAW, HUMAN RIGHTS AND POLITICS)

### First Edition, 2015

### Ankur Mutreja

(ankurmutreja.com)

Copyright © 2015 Ankur Mutreja

### Introduction

Opinions are like flare, which can turn either way: they can spread like wild fire or encapsulate themselves within the bounds of personal integrity, and thus illuminate. I started writing opinions in the late 2008 through my blogs. I admit at times I did go wild with unsubstantiated accusations and surmises, leading to risky speculations and irresponsible opinions. Recently, I published a comprehensive book of my writings entitled **"** **Writings @ Ankur Mutreja",** and the present book is a short selection of my opinions presented therein with emphasis on responsible writing.

I am an advocate by profession; therefore, most of my opinions have a tint of law; in the first part, the expression is simple; so, it is for lay persons who won't mind a little exercise of mind in the legal arena; whereas, in the second part, I have gone whole hog with law, and I admit those without formal legal training may find it convenient to ignore.

My style of writing is terse and pointed, but at times I have gone overboard like in one particular opinion on **Aarushi** murder, where emotions and logic intermingled in an expanded narrative. Rights, especially privacy and equality, are my area of focus; therefore most of my opinions herein; i.e., the ones discussing **Brain Research** , **NCTC** , **Sting Operations** , **LGBTs** , **Prostitution** , **SC/ST quotas** , and **AADHAR/NPR** ; are focused on these two areas.

In my selection, I have tried steering clear of politics, but politics is nevertheless all encompassing; however, one opinion on tussle between **Delhi Police** and **AAP** is majorily political; another political opinion, but with a strong emphasis on law, is the discussion of **Zakia Jaffrey** case.

There were few very big events in the recent past; one amongst them is the **Nirbhaya** murder, and I have also discussed it, though my take is slightly different: I think the murder has been manipulated by the vested interests.

I am a resident of an unauthorized colony; therefore, my opinion on **Unauthorized Colonies** has found place in the present selection; though I admit had the case been different, I wouldn't have included it; so please bear with my little bias.

Though I have no expertise in international affairs, I have taken a plunge into it albeit within the ambit of my legal training; the topics discussed are **Indo-Pak** relationship and **Julian Assange**.

Finally, in the second part, I have discussed various judgments and laws. I would recommend anybody to read at least my critique of **Aarushi Judgement**. Other than that I have critiqued **Binayak Sen Judgement** and **Aruna Shaunbaug Judgement**. In the second part, I have also critiqued **RTI Act** and **Amendments in IPC** **post Nirbhaya** murder.

Enjoy Reading! Ankur Mutreja.

Please note that this book was published in July 2015, but I have added a comment dt. 25.09.2015 in the "Chapter: Aarushi Murder Case Judgment: A Critique" – an advantage of Indie Authorship.

(Do have a look at my other book Annapurna Circuit Trek: Fairy Tale of Love with Nature)

# Chapter 1: Opinions (General)
### Chapter 1.1: The Danger of Brain Research

(March 2014)

Brain research is a fledgling area. The documented objectives of the research include understanding the complex working of the brain for medicinal, surgical and artificial intelligence purposes. The undocumented objectives include mind control, especially for the purpose of "intelligence and security"; the surreptitious research in this area has already advanced quite a lot mainly because of the use of innovative engineering techniques involving wave physics and computer modeling. According to the conspiracy theorists, it is now possible to read the thoughts of a person, with or without bugging the brain or any other part of the body. In fact, the research carried out after bugging the brain is well documented, and the visual and vocal images originating from the brain of the guinea pigs have been transferred to LCD screens and speakers respectively – this means that what a person speaks to himself can be heard, and what he dreams in his mind in the form of images can be seen.

Now let us see where the research is headed. The documented research till now has been able to demarcate the areas of brain responsible for various activities like smell, language, visual images, etc. They also know that the brain activities take place in the form of electrical impulses. The brain emits waves of low frequency, which can be read by proper modulation, and that is how the vocal and visual images are read. However, the complex processes of brain and/or nervous system, like consciousness, are yet unknown. In fact, there are certain quantum physicists who believe that consciousness is not a neuron function at all, but a microtubules function, and is thus inherently unpredictable in accordance with the laws of quantum physics, and thus artificial intelligence is impossible. Nevertheless, even if it is assumed that the current research is headed in the right direction, and, by researching the neural interconnections, one can unravel the mysteries of the brain, this task is next to impossible because the number of interconnections between the nerves in a human brain are more than the number of atoms in the universe — just imagine how daunting a task it is. Then, why should the corporate and the governments throw so much money into this field?

The answer lies in the undocumented mind control research. They all know they are never going to achieve anything in the field of artificial intelligence, and the benefits in the field of surgery may also not arrive in the concrete form ever. However, the benefits in the field of mind control are enormous. If the conspiracy theorists are to be believed, there are tools and techniques through which any human brain can be read using wave technology; so, what is required is the strategic location (say in a police station) of the right machines, tools and implements in the residential neighborhoods in densely populated cities; now combine this with the organized harassment through the politicians and the police agents: well, one can potentially control each single mind. The USA has, in the past, carried out extensive research on this aspect and also executed the same under the codename "Cointelpro", wherein the black rights activists were targeted by the State through organized stalking and electronic harassment. The USA has officially shelved this program, but, if the conspiracy theorists are to be believed, the program has been institutionalized across the globe for targeting prospective rebels and rebellion. However, the more distressing is the prospect of direct penetration of minds using the Nanobots; the Nanobots are microscopic robots invisible to human eyes and, when diffused in the air, can be inhaled. Logical extrapolation makes me believe that the objective of the future brain research will be to unravel as many mysteries of the brain as would be necessary to effectively employ Nanobots for controlling the human mind through computer commands: This would be an alternative way of achieving artificial intelligence by converting humans themselves into robots.

I don't know whether the above objective is achievable, but look at the prospects of human right violations even if such a research is carried out, and we never know what other methods of mind control may be under contemplation or discovered. **Last but not the least, what about the unwilling guinea pigs, who are left no more than zombies?**

(Do have a look at my other book Annapurna Circuit Trek: Fairy Tale of Love with Nature.)

### Chapter 1.2: Legalising Prostitution

(November 2014)

As per the Immoral Trafficking (Prevention) Act, 1956, of India, prostitution means _"the sexual exploitation or abuse of persons for commercial purposes or for consideration in money or in any other kind, and the expression 'prostitute' shall be construed accordingly."_ However, it is to be noted that the Act doesn't criminalize prostitution _per se_ ; it only criminalizes certain instances of prostitution; it criminalizes prostitution in brothels; i.e., any place where two or more prostitutes practice their trade or a single prostitute practices her trade for the gain of another person, not for her own gain; it criminalizes living on the earnings of a prostitute with a rebutable presumption that any adult habitually in the company of a prostitute is living on her earnings; it criminalizes prostitution in vicinity of a public place; it criminalizes soliciting clients in a public place; and it obviously criminalizes all kinds of trafficking, explicit or implicit, for the purpose of prostitution; however, the most controversial provision is the one providing for removal of prostitutes from any place, whatsoever, by a DM/SDM/Executive Magistrate within his local jurisdiction in **General Public Interest** — it is to be noted that police officers are often given the powers of executive magistrates.

From the above, it clearly emerges that prostitutes, irrespective of their mode of practice, are considered as out-castes. They are not allowed to associate with the community at large as of right, and, even in the cases of individual interactions, there is hardly any chance for them to interact with the people other than those from their own profession, for anybody seen habitually with a prostitute runs the risk of being called her parasite and thus a criminal; they also can't form partnerships or solicit clients freely, thus restricting their practice of their profession.

It seems there are already talks to amend the Act. In 2006 as well, a bill was introduced but it lapsed (Re: http://www.prsindia.org/billtrack/the-immoral-traffic-prevention-amendment-bill-2006-143/). The bill deleted the provisions putting restrictions on soliciting clients and providing for removal of prostitutes.

I think Section 20 of the Act providing for removal of prostitutes is extremely derogatory. A prostitute without being termed a criminal is, nevertheless, being treated like one. She is being left at the mercy of the community to be accepted as a regular resident/citizen, which, more often than not, is denied; and, thus, the prostitutes tend to congregate and live their limited existence in ghettos like G. B. Road, _Sonagachi_ , _Kamathipura_ , etc.; and then the community conveniently designate these areas as "red-light" areas — or, should we say the law regularized the derogatory practice of the society? So, the amendment deleting this provision was certainly welcome.

However, the other amendment deleting Section 8 of the Act providing for restrictions on soliciting clients in a public place was not welcome. The solicitation of clients for the purpose of prostitution would obviously not be decent because the society doesn't consider sex _per se_ to be a decent activity, which, in a way, is also correct — if ever, only nuns and popes would enter into disciplined decent acts; the rest would do sex passionately and wildly. So, the solicitation of clients for paid sex would naturally tend to be indecent: Who will ever go to a prostitute wearing black robe with wide collars? I would say the solicitation of clients by prostitutes is a tricky issue; some kind of official list of prostitutes with contact details for further private communication displayed at public places, is the best way to advertise prostitution.

However, I think the pro-prostitution proponents want greater freedom for prostitutes in the practice of their profession: They would like them to form partnerships, appoint pimps and managers, and even open licensed brothels. There are certainly some very ulterior motives involved in all this. There are people who don't only want to earn huge Dollar/Rupee profits from prostitution but also want to use women as currency, which can be laundered and re-minted almost perpetually; and they are trying to shoot from behind the shoulders of prostitutes. Their motives are clear from the kinds of debates they hold in media: They keep terming prostitution as illegal — but which it is not as per law — and, in disguise of giving dignity to the prostitutes, they want to run industries where women would be labor, capital and goods, all at the same time, but, nevertheless, under the control of the capitalists; they want to make rape an industry. The present BJP Government was expected to help them in their motives, but this soon! That was not expected. I would say this debate has thrown up a very serious challenge before the real women rights activists against the fakesters. They will have to guard against any attempt, however indirect and remote, of the present government to legalize any kind of trafficking and/or industrialization of women. The _status quo_ with respect to provisions restricting formation of prostitute partnerships or even restricting their free individual associations will have to be maintained for the better good of protecting women against their own commodification — in another of my writings, I have said that a prostitute has every right to get married like normal girls but only after leaving the profession, and, here, I reiterate it.

(Do have a look at my other book Annapurna Circuit Trek: Fairy Tale of Love with Nature.)

### Chapter 1.3: SC/ST Quota in Promotions

(September 2012)

A new debate has emerged on the Indian _newscape_ : Should there be quota in promotions? Incidental to the debate is the legal question: Will the constitutional amendment introduced in the Parliament pass the test of judicial scrutiny? I don't intend to discuss the second question except to express a _prima-facie_ view that there wouldn't be any challenge to the Basic Structure of the Constitution by introducing promotions in jobs for the SCs/STs; the logic is simple: the courts wouldn't look into the discretion of the Legislature to designate the SCs/STs as backwards, and, other than this, there won't be any challenge to the Basic Structure in reference to the **M. Nagaraj case** (Re: M _._ Nagaraj v. Union of India (2006 (8) SCC 212); download from http://indiankanoon.org/doc/102852/).

However, the real question, i.e. the first question, is clearly a political question. I have heard two sets of alleged material facts, which I believe to be true: First that there are no or negligible SCs/STs in the secretary level posts in the ICS, and, second that the SCs/STs generally join the services very late with a time gap of around 5-6 years to the general candidates. The ramification of the two facts is that the SCs/STs never reach the highest administrative grades.

I think there are no further relevant issues in the present debate. The SCs/STs have a genuine grievance that they are not represented in the higher echelons of the decision making, and, therefore, in spite of all the reservation benefits they get, they don't get to influence the decision making at the policy level — though it's another question whether an administrative officer should even be trying to influence the policy making given they are not supposed to make policy decisions as that's the work of the ministers; however, we all know how the Indian system works, and what competitiveness the ministers bring to the table.

At the same time, there is also an issue of reverse discrimination. The SC, in its wisdom, held in the **M. Nagaraj** **case** that "Catch-Up" and "Consequential Seniority" don't form part of the Basic Structure. However, that doesn't mean that the Legislature will completely ignore it. There ought to be some guidelines for promotions and "Consequential Seniority"; these just can't be caste based promotions and "Consequential Seniority", as is intended to be done. With respect to the challenge of equality, the logic of the SC judgment was that the two contradictory issues of affirmative action and reverse discrimination would get settled while ensuring controlling factors of backwardness and inadequate representation, which were held to be contextual to be determined on case-to-case basis in the light of the available **data** ; the word "data" is very important because now the "data" is being replaced by the "common opinion" of the Legislature, which, as already stated, won't be scrutinized by the courts within our existing constitutional scheme.

I think, in the current monsoon session, the Legislature doesn't represent the "general will" of the citizens of India with respect to "quota in promotions" because the parliamentarians are not debating but fighting; people in India are sane enough not to entrust the expression of their "general will" to such hooligans; the Parliament is in _"Paglapur"_ state these days.

The best thing for the parliamentarians will be to take a break, go for a picnic, and, may be, flirt with each other — better than flirting with the trust of the people.

(Do have a look at my other book Annapurna Circuit Trek: Fairy Tale of Love with Nature.)

### Chapter 1.4: Minority Report - an Indian Adaptation

(March 2012)

When I watched the movie "Minority Report", I was scared to death on the prospect of robot-police entering the bedrooms of people for taking their IRIS scans to catch an alleged criminal not because I am a criminal but because I don't trust the State, especially the Police. But, it was just a movie, and its chances of turning into reality were remote in India...but, not really! The scary movie has already turned real in India, and there is no Hero in this movie, albeit there are plenty of villains.

The name of the villain/s will vary from person-to-person depending upon their discernment of facts. Nevertheless, I suggest the following names:

1) Mr. Manmohan Singh, the Prime Minister.

2) Mr. P Chidambaram, the Home Minister.

3) Mr. Pranab Mukherjee, the Finance Minister.

4) Mr. Nandan Nilekani, the UIDAI chief and ex-CEO, Infosys.

5) Mr. Montek Singh Ahluwalia, the Planning Commission's Deputy Chairman.

6) Mr. L. K. Advani, the Home Minister of the NDA Government in the year 2003-04.

7) Mr. Atal Bihari Vajpayee, the Prime Minister of the NDA Government in the year 2003-04.

I will just state the facts and leave it for the readers to choose their villain/s.

Minority Report – the FACTS

The movie started in 2004 when the politicians of this country, at the time of the NDA Government, amended (Re: http://www.legalindia.in/the-citizenship-amendment-act-2003) the Indian Citizenship Act by inserting Sec 14A, which made it mandatory for every citizen of India to register for National Register of Indian Citizen (NRIC) by providing his or her personal information. Sec 17 of the Act was also amended increasing the punishment for providing wrong information from six months to five years. No clues were provided in the Act as to what all will be collected for the registration. At the same time, the Registrar General, India, who is under Home Ministry, was also made the National Registration Authority. Subsequently, a division was created under him for collecting data of the usual residents of India to be entered in the National Population Register (NPR), which data is to be used eventually for preparing the NRIC. As per the Citizenship (Registration of Citizens and Issue of National Identity Cards) Rules, 2003 (Re: http://mha.nic.in/pdfs/citizenship_rules2003.pdf), the following information will form part of the NRIC:

(i) Name

(ii) Father's name

(iii) Mother's name

(iv) Sex

(v) Date of birth

(vi) Place of birth

(vii) Residential address (present and permanent)

(viii) Marital status – if ever married, name of the spouse

(ix) Visible identification mark

(x) Date of registration of Citizen

(xi) Serial number of registration

(xii) National Identity Number

In the year 2011, a door-to-door enumeration was carried out, in which 15 personal details were collected. At the same time, Mr. Nandan Nilekani started collection of biometric information of the usual residents including IRIS scans for the purpose of issuing AADHAR cards. As per the National Identification Authority of India Bill (Re: http://www.prsindia.org/billtrack/the-national-identification-authority-of-india-bill-2010-1196/), the collection of information is not mandatory, and a resident may opt out of AADHAR registration; but, as per Mr. Nilekani in one of his interviews, the service providers like banks may make the mentioning of AADHAR numbers necessary for availing their services; the bill is still pending, and the collection of information till now is on the basis of a Cabinet nod. How exactly? I don't know.

The Home Ministry, led by Mr. Chidambaram, raised concern about the information to be collected by Mr. Nilekani and recommended collection of biometric information under the NPR only. From time-to-time, I have been visiting the FAQ section of the NPR website (Re: http://ditnpr.nic.in/FAQs.aspx) and also other relevant portals, and, as per my knowledge, the biometric information was not to form part of the NPR earlier. Also, the same is not necessary as the information forming part of the NRIC (mentioned above) doesn't include the biometric information. However, my recent visit to the NPR website leaves me bewildered as the **biometric information now forms part of the NPR to be collected compulsorily by the Home Ministry**.

As per the news reports (Re: http://ibnlive.in.com/news/uid-nilekani-pc-reach-compromise-deal/224773-3.html), a compromise has been reached between the Home Ministry and Mr. Nilekani, as per which _"[t]he NPR will continue to capture biometric data, but if a person says he/she has taken an Aadhar number, no biometric data will then be collected by the NPR."_ However, the collection of biometric data would remain compulsory; those who don't get covered by the UIDAI shall be covered by the Home Ministry; and, it seems, it shall be ensured that the failure to provide biometric data would carry a punishment of five years u/s. 17 of the Citizenship Act, 1955.

Now the readers may make their own conclusions; however, I will offer the following hint: The villain is not always the one who appears to be so; in a conspiracy, it is always very difficult to identify the master-mind, and guesses have to be made.

India has now become the worst country of the world: The residents herein have to compulsorily divulge their biometric data to even live here. People need to learn running because, eventually, they will have to run away from this country.

### Chapter 1.5: Intelligence v. Investigation; In Reference NCTC

(February 2012)

There is a fine distinction between an intelligence agency and an investigative agency. Inclusion of the CBI in the list of exceptions under the RTI Act is a clear non-understanding of this fine distinction — or, should I say, it was deliberate — and the reason for this is the lack of respect for the privacy of people. In **R. M. Malkani case** (Re: R. M. Malkani vs State of Maharashtra, 1973 AIR 157, 1973 SCR (2) 417; download the judgment from http://indiankanoon.org/doc/1179783/), the privacy of an accused was infringed to record the conversation between him and the complainant, of course, without the knowledge of the accused; a contention was raised that the evidence was inadmissible for having being collected illegally by infringing the privacy of the accused; however, the Supreme Court overruled the contention. Here is where the problem lies: the collection of information by an investigative agency in the course investigation shouldn't be anything other than the public information or the private information collected by a procedure established by law. If not, it becomes intelligence, which by its very nature is intrusive — assuming that the intelligence agencies never collect information by a procedure established by law, and it's no point debating it. If the investigative agencies are allowed to invade the privacy of people without following a procedure established by law, it would be anarchy, not law; and the investigative agencies will cease to be the institutions of a Democracy. However, the police forces in this country have Crime Investigation Departments (CID), which do nothing else but intrude into the privacy of people; so much so that they want to make everything public by installing cameras at each and every place, by collecting IRIS data of each and every Indian, etc. And, of course, there are also the National Investigative Agency (NIA), the Central Bureau of Investigation (CBI), etc., which also intrude into the privacy of people with impunity.

Now comes the National Counter Terrorism Centre (NCTC), a nodal agency to co-ordinate the activities of all the investigative and intelligence agencies of the country with the perspective of controlling terrorism. An intelligence agency can't control the investigative agencies, but, definitely, it can collect legitimate information from them. I don't know what exactly this new agency is going to do, but if it is going to control the investigative functions of the police, then the concerns of the states are well-founded not only because it infringes upon the rights of the states but also because it will turn all police forces into intelligence bureaus, which is dangerous; but if such is not the case, the concerns of the states are obviously misconceived.

However, I have a fundamental problem with the growth of intelligence agencies because they are beyond law, non-answerable to anybody, working under no compulsions whatsoever. In India, they are created by administrative orders, but, even if assuming they were responsible to the Parliament, it doesn't change things much: Up there, they are all the same, and, since there are no privacy laws in India, they can very much do whatever they want. A citizen can go to the Supreme Court u/a. 32 r/w a. 21 of the Indian Constitution r/w a 21 for the protection of his Right to Privacy, but only if he has knowledge of its infringement: The activities of the intelligence agencies are completely secretive, and no one knows what they do and why they do it. In other words, the presence of intelligence agencies in a country is inversely proportional to the happiness of the people residing therein.

I don't know what is the level of terrorism threat that India is facing, but the creation of any new intelligence agency directed towards blurring the distinction between intelligence and investigation is completely undesirable; however, if the creation is directed towards making the distinction obvious by taking the intelligence functions away from the police...well, I think, it can be allowed, but only if the threat of terrorism is real and extreme.

(Do have a look at my other book Annapurna Circuit Trek: Fairy Tale of Love with Nature.)

### Chapter 1.6: Privacy and Sting Operations

(March 2010)

Privacy is derived from the word "private", which is an antonym of the word "public." There has always been a conflict between the society and the individual, so much so that some thoughts in sociology even consider privacy a disease. Though, obviously, such thoughts are corrupt because privacy is an essential ingredient of the personal liberty of an individual, and **No Privacy Means Slavery**.

The definition of privacy is easy and clear: All power with respect to the private information of an individual should remain with the individual subject to the norms of the society. Some of these norms are indeed set up by the powerful individuals, who use society as a medium to further their self interests. However, other norms are set up genuinely by the society, and one such norm is to not to allow complete privacy to individuals. No individual can exist in a society unless at least he discloses his identity to the society; so, some of his personal details like name, sex, age, etc., can never remain private. However, if an individual is a public figure or is involved in some public duty or is active in a public space/forum, he needs to disclose a lot more (a person active on a public street can hardly claim privacy from disclosure of his identity and acts; however, at the same time, nobody can disclose the identity of a _pardanasheen_ though can disclose the acts), and if an individual fails to disclose appropriate information, the society find out ways to gather the same.

It may often happen that the same means are used by the society to gather both appropriate and inappropriate information: "sting operation" is one such means. So, the word "appropriate" becomes very important. There are some interest groups that consider the knowledge of private sex lives of individuals as appropriate public information, especially if the individual concerned is a public figure or is involved in some public duty. For example, some people in the Aligarh Muslim University consider the private sex life of their teacher as appropriate public information; yet some others elsewhere consider the sexual adventures of the movie stars, the religious gurus and the politicians as appropriate public information. It is hardly a debatable question whether society approves of it; at least the law doesn't, which means even the society doesn't: Under section 294 IPC, an obscene act in a public place is an offense, which obviously includes sexual intercourse in a public place. BTW, as per law, a public place means any place frequented by public, irrespective of whether the place is a private property or a public property; and "public" means any class of public or community: Even a single person can form a class, for example "the President of India". So, how can the law allow public display of the private sex life of an individual? Rather, the strictest punishment possible should be awarded under section 294 IPC to those who indulge in such public exhibition of sex lives of individuals. However, I know there is hardly any punishment that can be awarded under section 294 IPC; so, what we need is a strict comprehensive privacy law, in which the infringement of privacy is considered an offence, and the strictest punishments possible are provided for.

However, at the same time, some "sting operations" have also served useful purpose. The public disclosure of the illegal acts of the public servants in contradiction to their well laid out public duties is definitely beneficial to the society. A politician or a bureaucrat caught accepting bribe doesn't call for any privacy. Moreover, the recording of these acts and making them public thereof doesn't infringe anybody's privacy. As per the law laid down by the Supreme Court in **Rajagopal v. State of Tamilnadu** (R. Rajagopal vs State of T.N., 1995 AIR 264, 1994 SCC (6) 632; download the judgment from http://indiankanoon.org/doc/501107/), a public servant has no right to privacy for the acts done in discharge of his public duties. So, if I record and make public my conversation with a public servant in which he demands bribe for discharging his public duty, I don't infringe his privacy as I only intended to record his public acts in the discharge of his public duties.

Thus, there is no dilemma between "sting operations" and privacy. Both can co-exist except that those carrying out these "sting operations" will have to stop calling them that when they don't infringe anybody's privacy; and, when they do, they should anyways be banned. In other words, the word "sting" should be banned.

(Do have a look at my other book Annapurna Circuit Trek: Fairy Tale of Love with Nature.)

### Chapter 1.7: LGBTs: Lesbians, Gays, Bisexuals, and Transgenders

(July 2009)

Are LGBTs actually a different sexual group, who are fighting for their rights to be treated equal to others? The only group which I have seen isolated and deprived is that of eunuchs, who earn their livelihood by dancing in social events and, lately, also by extortion and prostitution; they probably fit into the category of transgenders. Lesbians-Gays-Bisexual is not a different group, but, of course, unless they want to establish themselves as such; but, if they do, what is their identity? They say they follow different rules of love, and that's their identity; but, I wonder, can there be any different rules of love. I think the only thing which differentiates them from the others is their indulgence in "unnatural sex", which, most of the times, is without much love. Yes, the Delhi High Court is correct in saying that they have the Right to Privacy, and it's nobody's business to know what happens within the confines of their bedrooms; but, unfortunately, it is not often limited to bedrooms: Gays and lesbians often proudly display their different identity (should we call it inferiority complex). This group _per se_ differentiate themselves just on the basis of their sexuality, and, unless they publicize their sexuality, they are in the danger of losing their identity. This is the important question which the decision makers need to look into; i.e., whether the recognition and promotion of a group which indulges in "unnatural sex" beneficial?

I think it is not beneficial. Even when we take the cases of transgender/eunuchs, there have been stories of forced conversion of normal people into eunuchs; they exist in close mafia like groups and often indulge in gang fights; they follow a very restrictive community culture in which all are subordinate to their respective mentors/gurus, and they follow the command of their gurus without questions. All in all, they live a very unnatural life, restrictive to any kind of creative growth of mind. Similar are the cases of gays. Though they don't have such restrictive lifestyles, but they do have distorted ones: Most of the full time gays indulge in prostitution; many of them spend most of their time searching for suitable sex partners; only a few like established fashion designers, corporate honchos, etc., do any thing worthwhile other than sex. Actually, the idea of equality of a group, whose only differentiating factor is its sexuality, while safeguarding the sexual privacy of the group members, is self-contradictory. A group which itself makes its sexuality public can't demand privacy for its sexual acts: If someone says he is a gay, then the obvious inference would be that he indulges in non-vaginal sex, and this information can't remain private; this information can remain private only if no group of gays exists, and the consenting individuals can continue to have whatever sex they want but within the confines of their bedrooms; of course, no policemen would ever get to know anything — I wonder if there is any healthy straight couple which doesn't indulge in non-vaginal sex (including oral sex) once in a while. So, unto this point, Sec 377 is definitely against Article 21 and has been rightly held void, but the recognition of LGBTs as a different sexual group and upholding of their Right to Equality especially under Article 15, which reads, _"the state shall not discriminate against any citizen on grounds only of religion, caste, sex, place of birth or any of them"_ , is just not understandable. Can there be a different sexual group (biologically) because of a different sexuality (practically)? I think it is not possible. Existence of such sexuality is an exception, which can't lead to the changes in the Laws of the Nature, which only recognizes men and women. The LGBTs do have a right to equal treatment under Article 14, but not under Article 15, because doing so creates an unwanted category of people, who remain always in minority at odds with the majority and never get the Right to Equality in practice, irrespective of the judgments and the law.

Post Supreme Court Judgment Addendum

Agreed they indulge in "unnatural sex", but so do straight couples (non-vaginal sex). Can the State intrude into the private sexual lives of the people? Or, in other words, if someone goes and makes a complaint to the police that a couple indulges in "unnatural sex" and submits a furtively created sex-video in support, will the police put the couple under surveillance u/s 149 CrPC, so as to peep into their private sexual lives? If not, how can s. 377 IPC be sustained without modifications? There is a clear infringement of privacy in the cases u/s. 377 IPC; the SC has failed to appreciate it, which seems to be an error apparent on the face of the record.

After the fast perusal of the SC Judgment (Re: Suresh Kumar Kaushal v. Naz Foundation, SLP (civil) no. 10972 of 2013 in the Supreme Court of India; download the judgment from http://judis.nic.in/supremecourt/imgs1.aspx?filename=41070) on LGBTs, I am made to believe that the SC has impliedly held that the people don't have any Right to Sexual Privacy u/a 21 of the Indian Constitution, and any criminal procedure u/s 149 CrPC infringing the same is not undignified and therefore not arbitrary and therefore not violation of a. 14. Now, this is highly regressive: Instead of expanding the scope of the Right to Privacy, the SC has chosen to limit it further while referring to the past judgments wherein the sexual privacy had not been discussed in the same context as raised in the appeal before the SC. It is a complete blank out to even think that the people have no recognized Right to Sexual Privacy in India. How can the SC even come up with something like this? In a single stroke, the SC has made all the porn videos created by the State legal — yes they do it. This is a highly regressive judgment. Incredible! The Parliament not only needs to quash the provisions like s. 377, s. 497 IPC, etc., but also needs to immediately pass a comprehensive law on privacy; else, some robe-clad eggheads will keep making stupid sermons from behind the safety of the bench.

The LGBT judgment has created a serious crisis of human rights. Sexual privacy is part of Article 21 of the Indian Constitution — one wouldn't even blink an eyelid before thinking so. But, not anymore, now people in India have no sexual privacy: The State can legally peep into the bedrooms of the people u/s 149 CrPC because s. 377 IPC is a cognizable offence. WTF! Why the many liberals didn't intervene and left it only to the LGBTs to fight the court battles? LGBTs wanted the recognition of their group identity, which they didn't get, but they ended up taking away the sexual privacy of all the people in India. Now, the Parliament has to pass a comprehensive privacy law before all these parliamentarians face a serious threat to their persons and property from the people at large. There just can't be any premature ending of the winter session. F-off with financial business; first pass the privacy law and also a constitutional amendment making right to privacy a fundamental right as has been done in the case of Right to Education.

(Do have a look at my other book Annapurna Circuit Trek: Fairy Tale of Love with Nature.)

### Chapter 1.8: AAP versus Delhi Police

(January 2014)

Let's first discuss the legal issues. The current turmoil has arisen because of the inaction of the Delhi Police on the night of 16th January, 2014, when Somnath Bharti, the Law Minister, urged/agitated with the Delhi Police personnel to carry out a raid in a building allegedly occupied by prostitutes and drug peddlers. The Delhi Police justified inaction for the want of a search warrant. Well, as appearing in various media reports, the offences were made out under the Narcotic Drugs and Psychotropic Substances Act, the Immoral Trafficking (Prevention) Act, the IPC and the MCOCA as extended to the NCT of Delhi. The police could have searched the premises not only u/s 42 of the Narcotic Drugs Act and u/s 15 of the Immoral Traffic Act but also u/s 47 CrPC; so, the excuse of the Delhi Police is completely bogus; this is an open and shut case. By now, the SHO concerned should have not only been suspended but also dismissed. However, I am damn impressed with the daring attitude of the AAP: They have directly challenged the Delhi Police, which is one of the most corrupt and arrogant police force. If the AAP really have it in their agenda to reform the Delhi Police, well, they need to get ready for a seriously risky, long and tiring war. But, of course, something needs to be done.

However, I see a bigger conspiracy here. The international mafias have vested interests in drug trade, and prostitution comes in as a natural accessory. These international mafias are not restricted to any single country, but operate across the borders. In some Asian countries like Thailand, these mafias are penetrating or have already penetrated deep enough and are thus posing serious threat to the social fabric of the countries. India is at threat too: Goa has already become the sex and drugs capital of India, and the mafias are fast moving into the mega cities like Delhi, and then they will move into the rural areas as they did in Thailand. I don't know how deep the threat has grown in India, but, certainly, the AAP has taken a security risk, which is commendable.

Now let us see what could be the reasons for inaction of the Delhi Police. It is beyond doubt that these kinds of organized crimes happen with the connivance of the police — if they want, they can invoke MCOCA on cricketers, then why not on organized drug trafficking and prostitution! Giving the benefit of doubt to the Delhi Police, they might not have been prepared; and, as they operate, the local police don't get involved in macro issues like organized crimes. But, why is the Delhi Police not taking any organized action against the organized crimes in Delhi? What's stopping them? Why can't they hold press conferences to satisfy people, clearly laying out their future action plans and elaborating the actions already undertaken? There are too many unanswered questions, which makes me believe that there are some vested interests in the Delhi Police who want to let this keep going.

I think these vested interests are the monetary benefits that the top cops might be getting from the corporate, who generally try to maintain a fine balance between the state forces and the private forces like the mafia, so that they can shift from one to another as per the need. Most of the early corporate America was built on the shoulders of the private Mafia, and now, of course, the corporate in America are worse than the mafia. However, that's only a speculation; the reasons could be different. But, I wonder why the corporate media is not supporting the AAP now when they supported the completely rubbish Anna Agitation earlier. Whatever the reasons, there just can't be any reason for allowing the Drug and Prostitution Mafia to take control over the urban landscape of India: **AAP is doing it right.**

(Do have a look at my other book Annapurna Circuit Trek: Fairy Tale of Love with Nature.)

### Chapter 1.9: In Reference Medical Student's Rape; the Indian Youth Are Disoriented

(December 2012)

I feel scared living in this country because anything is amenable to manipulation here. I have worked in the corporate sector as an investment banker (though it's history now), in the legal sector as an advocate, and in the society at large as a writer — all in the urban areas. The urban society can easily be classified into the power-elites, the elites, the skilled workers, and the unskilled/less-skilled workers/urban poor — Ram Singh, who is the main accused in the Delhi medical student rape case, can be said to be belonging to the unskilled/less-skilled workers/urban poor category. In Delhi and Bombay, the politicians fully and completely control the urban poor — they can't even sneeze without the permission of the local politicians/goons. The elites, i.e. the _nouveau riche_ entrepreneurs, the successful independent professionals, the high ranking corporate/government sector employees; i.e. the managers, etc., are under a strong influence of the pseudo-liberal capitalist ideology, which is an amalgamation of the conservative and the Liberterarian ideologies. The skilled workers, i.e. the clerical staff in the government/corporate sector, the dependent/struggling professionals, the small entrepreneurs, etc., are a disoriented class strongly under the influence of the conservative ideologies (the saffron ideology, the religious fundamentalism, the regionalism, etc.). The power-elite class is obviously enjoying the _status quo_.

The _status quo_ is beneficial to the power-elite in many ways, but, in the present context, the discussion on the status of women is relevant. Except for the power-elite, I have experienced all the above-mentioned classes closely; however, I exist in such an inexplicable situation, where I have clearly understood the agenda of the power-elite. The women across the board enjoy an inferior status. Amongst the power-elite, but for few exceptions, she has been restricted, more or less, to the status of a house wife/queen. Amongst the elite, she enjoys a more powerful status but only if she has been lucky enough to rise high just on the strength of her **talent & talent alone**; however, the majority in this category end up working both as full-time housewives/GFs of the elite male counterpart and as independent part-time skilled workers; so, they enjoy the overall status of an elite but the independent status of only a skilled worker; a few also enjoy the independent status of the elite sex-workers serving the power-elite. However, the status of the woman amongst the workers and the urban poor is most deplorable: The woman in these categories is considered as a natural subordinate of the male counterpart, deserving of the physical violence at the hands of the male counterpart as a norm; however, ironically, they are also expected to be the bread-earners; many women in these categories also double up as sex workers serving the elites, the power-elites, and even the workers, mostly out of desperation, but, at times, also voluntarily.

The above statuses of the woman are not natural but the result of a well-orchestrated strategy of the power-elite, who are mainly men. There are various modes through which these statuses are reinforced, both directly as well as subtly, as in the "Pink _Chaddi_ " campaign, the "Legalization" of Prostitution campaign, the "Cleavage Power" campaign, the alimonies, the beauty pageants, etc., which are nothing but reinforcements of the statuses of the woman as sexual objects, which women at large fail to understand. The death penalty for the rapists is yet another such mode, which is obviously being promoted at the behest of the power-elite. The sole purpose of such a move is to enlarge the ridge between the man and the woman. The power-elite want to completely bar the movement of women into power positions, which they can do best by limiting their growth to those positions where their sexual identities become the most important qualification, which is achieved best by protecting even the most trivial attacks on their sexual identities accompanied by very harsh punishments in the cases of transgressions; however, while allowing the power-elite and the elite to rape them with impunity by relegating their positions to that of the sex-workers of the power-elite and the elite.

This time the power-elite have made fools of the aspiring elite, i.e. the educated youth, who are agitating randomly at various places in Delhi. I visited India Gate today; the groups agitating there were completely disoriented: one group was shouting for chemical castration of rapists — eunuchs have now started preferring chemical castration to physical castration to enjoy their preferred status of no-male eunuchs and are eagerly waiting for the launch of pills which can provide them permanent chemical castration; those who want to provide for chemical castration of rapists fail to understand that their choice of punishment also relegates the status of eunuchs to that of rapists and _vice versa_ — another was shouting for death penalty for rapists, yet another for justice in general; to my surprise, there was none seeking gender sensitization, the lack of which is the root cause of crime against women. I had much rather seen posters like, "The way to our hearts also lie through our stomachs, so, guys, learn cooking!" Now the government also seems to be budging: They are thinking of providing death penalty in the "rarest of rare" rape cases. The "rarest of rare" is a loose concept, which has not yet been defined well enough to enter the law codes; how can any government even think of any such adventure!

The present rape case of the Delhi medical student, which has led to such a wide scale agitation, is not just a rape case; it is a case of aggravated physical violence against a woman; so, the commonsense approach to this problem is to differentiate physical violence against woman from that against man, and the exercise should then lead to a deliberation towards providing a harsh punishment for physical violence against woman.

(Do have a look at my other book Annapurna Circuit Trek: Fairy Tale of Love with Nature.)

### Chapter 1.10: Aarushi Talwar's Parents: Choices before Them

(June 2012)

**Assumption:** Aarushi's parents are not guilty, and the CBI's suspicion in the closure report is unwarranted.

I am making the above assumption because balance of convenience lies in favor of this assumption; that is, a wrong report of the CBI does more harm to Aarushi's parents than a correct report does good to the society.

However, having made the above assumption, I am scared about the security needs of the people in this country. The only reason for the formation of government over anarchy is to secure the lower level security needs of the people, so that they may focus more on their higher level needs, especially when they are well-educated and have created enough resources in terms of money and knowledge. The CBI's reason for closing down investigation is their not being able to attribute any motive to the Talwars. Of course, the CBI is correct: sans motive, circumstantial evidence do not have much value as motive is itself an important circumstance. But, the murderer, whoever he is, definitely had some motive to kill Aarushi; what could have been the motive?

Was the motive to teach lesson to the Talwars? That is, to make them recognize that they were incapable of protecting their minor child? Not only that but also to make them realize that they are also completely incapable of protecting their reputation? Was it because the Talwars at some point of time resisted the attacks on the person of Aarushi in terms of subjecting her to ridicule, exploitation and contempt? Answer to my last question only the Talwars would know, and I respect their silence.

However, Aarushi's case, more than highlighting the failure of investigating machinery in India, highlights the insecurity under which the educated class of India is living. If it were anarchy, the educated class would have faced more challenges in terms of satisfying even their very basic needs, thus it would have never felt secured without gaining control over a variety of resources, not just knowledge and money, to gain power enough to protect the person, property and reputation of themselves and their dependents. The State has a responsibility to ensure that those who have been allocated duties under law do perform their duties because that's its promise to the educated class, who chose the State over anarchy and utilized their skills and knowledge for higher pursuits. However, as the things are emerging from Aarushi's case, it seems the State not only failed in performance of its promise but also helped those who killed Aarushi, both before and after the murder of Aarushi. This makes me believe that it is actually the State that killed Aarushi, either directly or, at least, in partnership with those non-state actors who killed Aarushi. This is a really serious issue because it seems, in India, the satisfaction of security needs of the people is more difficult than it is in anarchy, and the people don't even know about it.

But, what are the choices before those who realize the truth all of a sudden, but, in the process, end up losing their loved ones and/or their self-esteem? Or, in other words, what are the choices before the parents of Aarushi? Before the public disclosure of CBI's closure report, Aarushi's parents still seemed hopeful and desired to bring in changes in the system. But, what now when their own credibility is at stake? Will the system allow them the liberty to change it? I don't think so. Well, I think the choices before Aarushi's parent are two: the first choice is to maintain trust in the system and fight out the attack on their own reputation and that on the person and reputation of Aarushi by knocking the doors of law and society; however, this time after breaking their silence; the second choice is to continue maintaining their silence, stop giving these media interviews if there are no further attacks on their person, and start again and wait for the right opportunity. The selection of the first choice depends upon their own objective assessment of their legal position, esp. after breaking their silence, and upon their faith in the Judiciary and in the instruments of the society esp. the Media. Unfortunately, changing the system is just not a choice before them; they will have to live with it.

Addendum

Utsav Sharma's physical assault/attack on Rajesh Talwar needs to be seen in the following context:  
– Why Utsav Sharma was not under surveillance after the attack on Rathore?

– Now, Utsav Sharma's father coolly says that he will have to keep him in confinement.

What was he doing till now? Wasn't Utsav supposed to be in his custody? If not, why not? Who was looking after him?

– How come he has been able to inflict such grievous injuries this time when he couldn't do so the last time with Rathore? Where did he source his weapon from?

– Why the police is saying that Utsav Sharma seems to be normal?

– Has Utsav Sharma read any portion of the closure report to form any opinion about Talwars? Or, in other words, what was the motivation for attack?

– Is Utsav Sharma's attack part of a larger conspiracy? Are there some people wanting to put Rathore and Talwar on the same scale while using Utsav Sharma as a tool? Given all conspiracies are hatched in Gujarat these days, does Utsav Sharma's undergoing treatment in Ahmedabad has something to do with it?

This attack is abhorrent; somebody really needs to get to the root of it.

2nd Addendum

I have reached a conclusion, and I am sure the conclusion reached by me as an individual, as part of the general public, can not influence the courts conducting the trials, so there is no contempt of court by me; nevertheless, my apologies to the courts; I can't wait for years to make my conclusions. The conclusion reached by me is that the above assumption of mine is correct. The reason for the same are as under:  
– Leaks to the media by the investigators. They ordinarily do it only when it helps in investigation. The disclosure of the investigators in this case, however, was not to help the investigation. Especially, the disclosures by the UP police point to only one thing: the motive was to malign Talwars by giving stories to the Media, which the Media played and overplayed irresponsibly, or, should I say, with utmost responsibility to their patrons who wanted it done.

– Utsav Sharma's attack on Rajesh Talwar. It is the most unexplained element, and it points to a conspiracy to malign Talwars.

– The attack of the conservatives on the Talwars. This seems to me to be an ideological attack of the conservatives on the liberals. The past shows that the conservatives make personal attacks avoiding logical debates in order to hide the truth; the attacks are often made on the private sexual lives of people. Such attacks have been made in the present case as well.

– Convincing prima-facie rebuttal of all the circumstantial evidence by the Talwars and their lawyers in the media debates, especially the counter-allegations made against the CBI including the unexplained u-turn in the investigation.  
-The lack of motive for the Talwars to kill their daughter; in absence of which, the circumstantial evidence carry not much value. And also, the investigators have not been able to account for the swapping of the vaginal swabs.

I think this trial is better conducted in media because the people have been condemned in media. For me, the trial is over, and the Talwars have come out clear of the accusations made against them. Now, the investigators have to use all technology available to account for the murders.

I have a conspiracy theory. All this started at a time when lots of "Honour Killings" were taking place in the conservative sections of society, and the conservatives were taking the brunt. Thus, they planned it all to show that even the liberals do the same things when faced with family honor, and, in the process, ended up taking innocent lives. The Talwars really need to speak up if there is something of this sort. These conservative animals can't be allowed to take people's lives like this. They need to be sent behind cages.

3rd Addendum

I hear Mr. K.T. S. Tulsi, a senior advocate, saying that under Sec. 106 of the Indian Evidence Act, the onus lies on the Talwars to prove the facts especially within their knowledge. Also, the media is reporting that the onus has now been shifted on the Talwars to prove their innocence. Not having read the order/judgment of the CBI court, I don't know what exactly the court has asked the Talwars to explain. Nonetheless, going by the CBI closure report, I don't think there is much explanation required from the Talwars: Most of the things have already been explained in the report (copies of the report are available on various websites, I also recommend Tehalka's article on this case). Also, there is strong circumstantial evidence of the presence of intruders. The CBI's conclusion on this aspect is completely wrong, and, if so considered, the Talwars will be left with nothing to explain. I don't know whether the CBI court has considered the protest petition filed by the Talwars. If not, this would be a gross error of judgment, which, but for the legal immunity provided to the judicial officers, would have made me think otherwise.

4th Addendum

Now, I have read the order of the CBI Court. The CBI court reached the opinion that there were four options before the court:

1. To take cognizance against the prima facie accused as emerging from case diary and investigation (Sec 190(1)(b) CrPC).

2. To order further investigation (Sec 173(8) and 156(3) CrPC).

3. To consider protest petition as a complaint (Sec 200 CrPC).

4. To accept the closure report (Sec 190(1)(b) CrPC).

The Court reached the opinion on the basis of a referred case law **2001 AIR 2721**. In the said judgment of the Supreme Court, the reference has been made to another Supreme Court Judgment, i.e. **1985(2) SCC 537,** wherein the under-quoted has been mentioned:

In Bhagwant Singh vs. Commissioner of Police and anr., 1985(2) SCC 537$1 a three-Judge Bench of this Court has said, though in a slightly different context, that three options are open to the court on receipt of a report under Section 173(2) of the Code, when such report states that no offence has been committed by the persons accused in the complaint. They are:

(1) The court may accept and drop the proceedings; or

(2) The court may disagree with the report and take cognizance of the offence and issue process if it takes the view that there is sufficient ground for proceeding further; or

(3) The court may direct further investigation to be made by the police.

The Court has taken cognizance against Rajesh Talwar on the basis of the closure report, which is the first option. Other than that, the Court has also taken cognizance against Nupur Talwar; this seems to have been done under Sec 190(1)(c) CrPC as she was not mentioned as a suspect in the closure report; though the Court, in its order, has stated that the cognizance has been taken under Sec 190(1)(b) CrPC, but then it would be an erroneous interpretation of the above quoted SC judgment. The power of the Court to accept the closure report is deemed to be available under Sec 190(1)(b) CrPC as the magistrates don't have any inherent powers, which means **the Court could have also considered the protest petition under Sec 190(1)(c) CrPC** to not to take cognizance against the Talwars. Let us see whether the Court has done that.

The contents of the protest petition have been described in the order, so I will assume that the protest petition has been taken on record; however, while passing the order, the reasoning has been limited to the discussion of the circumstantial evidence available against the Talwars, not the protest petition filed by them. The Court, in its order, was not only taking cognizance against the Talwars but also dealing with the question whether, on the basis of the information available before it (including the protest petition), the Talwars had discharged their onus (if any) under Sec 106, the Indian Evidence Act, and whether the CBI was required to carry out any further investigation. From the reading of the order, it doesn't look like that the Court has considered all the information before it; i.e., the protest petition has not been considered. It is so because the reasoning forwarded by the Court has been comprehensively rebutted in the protest petition. The Court has laid lots of stress on the witness of Shauhrat with respect to the **attempt** to the destruction of evidence, not the destruction of evidence, by the Talwars. **A simple reading of the order shows that Shauhrat was earlier paid Rs. 25,000 for polishing, not painting, the "wooden partition" in the form of a brick wall.** The Court has taken cognizance for the offense of destruction of evidence, not for attempt to destruction of evidence, thus the evidence of Shauhrat is irrelevant; the only relevant evidence is the sound test done by the earlier CBI team, which has been mentioned in the protest petition, but it has not been considered by the Court. Moreover, the onus to disprove the destruction of evidence (if any) can't be placed on the Talwars in view of the serious doubts raised in the protest petition with respect to the non-involvement of intruder/s, which aspect has not been considered by the Court. Another strong circumstance has been highlighted by the court with respect to the inability of the Talwars to account for the keys of Aarushi's room. This is only a circumstance: in a secure environment of a home, one can allow oneself to be careless; one doesn't have to act with military finicky. The testimony of Talwars, cross-checked in the scientific tests at four occasions, is enough to account for the unfavorable circumstance. The Talwars' testimony has been mentioned in the protest petition, and, I think, the report of the scientific tests was also made available to the court, which the court, it seems, has not considered. In the protest petition, the Talwars have also very strongly rebutted the _alibi_ of the servants, which again the Court has not considered. Another circumstance going against the Talwars is the locking of the terrace door for the first time on the night of the murder combined with the murderer, instead of escaping through the adjacent linked terraces, coming back downstairs after leaving the dead body on the terrace, thus pointing to the involvement of the insiders. This circumstance only points towards the presence of person/s acquainted with the place, not towards the involvement of the house-dwellers. Other points, raised by the Judge, have also been rebutted in the protest petition. Moreover, many of the points raised by the Judge are based on the consideration of the CBI closure report. In the protest petition, there is substantial information which raises strong doubts about the authenticity of the report filed by the CBI, which aspect, it seems, has not been considered by the court.

In the above circumstances, I think, the Court has failed to consider the protest petition filed by the Talwars, and this is a gross error. The Talwars should immediately rush to the High Court and file a petition under Section 397 and 482 CrPC seeking relief for modification of the CBI court's order by quashing the cognizance taken against them and for further investigation by the CBI. They don't deserve to go through the trial.

**5** th **Addendum**

The order of the SC passed in the review petition filed by Nupur Talwar reasons that the evidence of the defense can't be considered at the stage of issuance of process as the accused has no role in the proceedings prior to the issuance of process. Well, **the reasoning forwarded by the SC is an error apparent on the face of the record**. Rajesh Talwar and Nupur Talwar were not appearing as accused before the Trial Court, but as protestors: The duo had not been named as accused in the closure report filed by the CBI; in fact, Nupur Talwar was not even named as a suspect. Now the question: whether the protest petition can be considered for arriving at a decision with respect to the issuance of process. Of course, the answer is yes, else there is no use of the protest petition. In the present case, there was no case of the prosecution against the Talwars. The case has been made out _suo moto_ by the Trial Court on the basis of the relevant material placed before it. The protest petition ordinarily would be considered as a private complaint, and the cognizance, if any, against the accused would be taken under Sec 190(1)(a) CrPC. But, here in the present case, the cognizance has been taken against Nupur Talwar, who was not even a suspect in the closure report, which can be done only under Sec190(1)(c) CrPC. The CBI had raised arguments before the Trial Court that even though they have filed a closure report, the cognizance can, nevertheless, be taken u/s 190(1)(c) CrPC. The Trial Court however took cognizance both against Nupur Talwar and Rajesh Talwar u/s 190(1)(b) CrPC relying upon **1985(2) SCC 537** (quoted above). The reliance is completely erroneous with respect to Nupur Talwar because she was not a suspect in the closure report filed by the CBI, so the cognizance against Nupur Talwar is deemed to have been taken u/s 190(1)(c) CrPC (else the Judge faces 7 year imprisonment for passing a grossly erroneous order at law). Now, if the cognizance has been taken u/s 190(1)(c) CrPC, why shouldn't the material produced by Talwars in their protest petition be also considered u/s 190(1)(c) CrPC? Why should any preferable treatment be given to the material produced by the CBI?

After reading Justice Khehar's order, I am made to believe that the case has not been handled well enough by the lawyers of the Talwars: First, they didn't seek a prayer for further investigation; secondly, they didn't make out a strong technical ground for review; thirdly, they didn't make out a strong ground in the SLP even. The cognizance against Nupur Talwar is completely erroneous in law; they ought to have pointed it out.

Curative petition is an exceptional remedy granted under only two circumstances: denial of natural justice for not being heard and denial of natural justice because of bias. The bias ground is completely ruled out here. Denial of natural justice for not being heard certainly happened before the trial court, but, before the HC and SC, well, I am not sure. However, I feel the interest of justice demands that denial of NJ even because of the error of the counsels should be a good ground in a curative petition. The remedy has been created as a last resort for getting justice, and the interest of justice demands that at least the cognizance against Nupur Talwar be quashed. And, of course, as already stated, there is also an error apparent in the SC order dt. 07.06.2012 passed in the review petition.

So, I would recommend filing of a curative petition irrespective of the negative opinions expressed by the SC in its order dt. 07.06.2012 because the said opinions are based on an error apparent. Also, now Dr Rajesh Talwar should file a revision petition against the order dt. 09.06.2012 seeking further investigation with an application for condonation of delay.

You are not defeated till the time you accept defeat.

(Do have a look at my other book Annapurna Circuit Trek: Fairy Tale of Love with Nature.)

### Chapter 1.11: In Re: Supreme Court Order Dated 12.09.2011; Zakia Jaffrey Has a Reason to Be Unhappy

(September 2011)

Zakia Jaffrey is the only person who, without knowing anything about law, is expressing the true sentiments with respect to the SC order dt. 12.09.11 in **Zakia Nasim Ahesan v. State of Gujarat** (Re: Jakia Nasim Ahesan v. State of Gujarat & Anr, Criminal Appeal No 1765 of 2011 in the Supreme court of India; download the judgment from http://www.supremecourtofindia.nic.in/outtoday/sr108808.pdf).

In this case, the SIT investigated the matter on the directions of the Supreme Court. The SC also appointed Amicus Curiae and directed him to file his report after an independent assessment of the statements of the witnesses who deposed before the SIT. The witnesses also included Sanjeev Bhatt. As per the media reports, the SIT rejected the statement of Sanjeev Bhatt and, in its report, gave a clean chit to Modi. Sanjeev Bhatt has filed an independent affidavit in the Supreme Court also. Vide order dt. 05.05.11, the Supreme Court didn't take the affidavit of Sanjeev Bhatt on record and postponed the decision on the same after the report has been filed by the Amicus Curiae. I don't know the independent assessment of the Amicus Curiae with respect to the statement of Sanjeev Bhatt, but, whatever may be the assessment, the SIT is not bound to include the report filed by the Amicus Curiae as part of its report to be filed before the Trial Court. In the words of the Supreme Court: _"Before submission of its report, it will be open to the SIT to obtain from the Amicus Curiae copies of his reports submitted to this Court._ " And, of course, the Supreme Court has not taken the affidavit filed by Sanjeev Bhatt on record in its order dt. 12.09.11 either.

The most important conclusion emerging from the order dt. 12.09.11 of the Supreme Court is that the Supreme Court has not doubted the SIT and has given it the final responsibility to file the investigation report before the Trial Court, and that is probably because the independent assessment by the Amicus Curiae is in sync with the assessment of the SIT including the assessment of Sanjeev Bhatt's statement **(The Amicus Curiae was the most important person in this whole case)**.

However, the Supreme Court has directed the Trial Court to give an opportunity to the complainant to file its protest in case the SIT files a "closure report". But, that would be of any value only if the Amicus Curiae has reached a different assessment with respect to the statement of Sanjeev Bhatt (which I guess is not the case). So, it is a clear cut pro-Modi verdict.

Zakia Jaffrey, if the decision of the Supreme Court doesn't satisfy you, there is no contempt of court in cursing the decision, so don't change your position. That's the only thing that can bring you closure now unless Sanjeev Bhatt goes out of the way to help you, which I doubt strongly.

Addendum

In the **Vineet Narain Judgement** (Re: Vineet Narain vs Union Of India, 1996 SCC (2) 199, JT 1996 (1) 708; download the judgment from http://indiankanoon.org/doc/1754201/) dt. 30.01.1996, the Supreme Court observed:

However, if in respect of any such person the final report after full investigation is that no prima facie case is made out to proceed further, so that the case must be closed against him, that report must be promptly submitted to this Court for its satisfaction that the concerned authorities have not failed to perform their legal obligations and have reasonably come to such conclusion.

I am also unhappy because the Supreme Court has not finally decided the issue of "closure report" itself but left it for the Trial Court to decide it. Also, I have not understood the need for keeping the SIT report confidential.  
BTW, not deciding the issue of "closure report" can also be a ground for review ( _Stare Decisis_ ).

2nd Addendum

Till now I have commented on the basis of media speculations, but now it has become clear that the SIT did file a closure report in the Supreme Court. What Supreme Court has done in this case is nothing less than a monumental blunder: It has overlooked its own precedence of the **Vineet Narain Judgment** dt. 30.01.1996 and failed to exercise its jurisdiction to reach a _"satisfaction that the concerned authorities [i.e. the SIT] have not failed to perform their legal obligations and have reasonably come to such conclusion [i.e. the conclusion to close the case]"_ and has left it to the trial court to reach a conclusion.

It is now clear that the Amicus Curiae reached a conclusion different from that of the SIT. I am surprised how the Supreme Court could pass such an order. It is a manifestly erroneous order. The Amicus Curiae was appointed by the Supreme Court to draw conclusions with respect to the evidence collected by the SIT. By leaving it to the SIT to file a closure report before the Trial Court with a liberty to draw conclusion distinct from that of the Amicus Curiae, the Supreme Court has basically made the whole exercise of appointing the Amicus Curiae infructuous and subjugated the independent position of the Amicus Curiae to the discretion of the SIT. This is not only erroneous but also an insult of the Bar. I am lost for words. Why has Mr. Raju Ramachandran been keeping silent?  
Of course, the opinions reached by the Amicus Curiae have been overruled by the SIT in its closure report filed before the Trial Court, and those being opinions, not evidence, are not to be considered by the Trial Court. It is a different matter that the Trial Court may also reach the same opinions as those reached by the Amicus Curiae, but, if not, it would be an additional insult to the Amicus Curiae because his report has also been submitted by the SIT before the Trial Court, which again is a very foolish thing to do because the report has no relevance before the Trial Court; at the same time, the Trial Court can't allow itself to be influenced by the opinions reached by the Amicus Curiae. So, now if the Trial Court reaches a conclusion different from the one reached by the Amicus Curiae, it will be an extreme insult to the position of the Amicus Curiae.  
I think the Supreme Court has erred very badly in the order passed by it, and now the only way out is to _suo moto_ review its order and reach a decision with respect to the closure report filed by the SIT by juxtaposing the conclusions of the SIT against the conclusions of the Amicus Curiae. If not, it is an insult of the Bar.

(Do have a look at my other book Annapurna Circuit Trek: Fairy Tale of Love with Nature.)

### Chapter 1.12: Unauthorised Colonies Are a Boon for the Citizens of Delhi

(December 2010)

Call it irony or whatever else; the unauthorized colonies have been a boon for the citizens of Delhi. These colonies have allowed the real needy people to construct houses and thus checked black marketing of land. Many people put up an argument that the DDA's control over the developed land has led to high land prices by creating artificial scarcity. But, actually the reverse is true. I need to speak a little about the land laws and the land market in Delhi to substantiate my point.

In Delhi, the major development of residential land is controlled by the DDA. In other words, all residential land in Delhi has to be owned by the DDA unless it decides to make the status of lands/flats/houses freehold and convey the same to the lessees. There are also some low income lands/flats/houses developed by the DDA and handed over to the MCD for management purposes, which lands/flats/houses are owned by the government and licensed out to the residents. I don't have much knowledge of the cantonment area land. Also, there is some land owned by the government directly. Obviously, the DDA has badly failed in providing well developed land in Delhi leading to two ramifications: first, the price of land in the DDA developed land has sky rocketed, and, secondly, large number of unauthorized colonies have sprung up. Now, let us see how the unauthorized colonies come up. Unauthorized colonies are unauthorized not because the ownership is unauthorized but because the construction of residential units on an agricultural land owned bonafide is unauthorized. In other words, if there were a mechanism for identification and transfer of small pieces (as small as 50 square yards) of agricultural land (which obviously can't be put to any kind of agricultural use, but only to residential use), the ownership of individual residents on these plots would have also been complete though the constructions would have still remained unauthorized, but only like any other unauthorized fourth floor in the so called authorized DDA colonies. But **fortunately** that has not happened in Delhi; let us see what has happened.

In Delhi, the agricultural land owners made some haphazard site plans with maximum possible utilization for residential use and minimal dedication to public use and, accordingly, sold the so-demarcated small plots to bonafide purchasers, but the registrar failed to register these transfers, for being unable to identify the transferred land. So, a person buying a plot of land this way has no recourse in a court of law because he is unable to identify his land legally. The courts don't recognize the haphazard site plans prepared by the agricultural land owners and also want registered transfer documents in all cases of transfer of property; however, the courts do recognize bonafide possession. So, in other words, these small plots can be utilized only by those who actually live there, which means the black marketing of land is minimal as the initial development of land has to be done by the bonafide residents themselves; and the retention of unutilized land for speculative purposes carries very high risk, not only legally but also practically as no speculator likes employing resources for keeping a constant vigil on his visually identifiable but legally unidentifiable plot of land. **This, in fact, has been a boon for the citizens of Delhi.** This way, the resourceful citizens of Delhi have been able to find affordable land and make their houses over it. The vote bank politics has also ensured the provision of basic amenities in good time. Of course, these basic amenities only include _paani, bijli and sadak_ ; not parks, shopping centers, community hall, etc. Though I agree that, with the provisions of basic amenities, the land prices in these unauthorized colonies have also sky-rocketed, and all kinds of builders, politicians and land mafia have benefited, but the initial development benefited the bonafide residents. Burari is a recent example of such a phenomenon, where the migrants have benefited the most.

Well, I think the Home Minister is definitely misinformed: The unauthorized colonies in Delhi are a boon for the bonafide residents, not criminals. BTW, the ninety-five percent of Delhi live in slums and these unauthorized colonies with a large proportion of migrant population in it, so, obviously, no less than ninety-five percent of crimes should also originate from these colonies. The Home Minister need not have retracted his statement; it is indeed a statement of fact — though no genius, except an evil genius, would make it at the first place.

(Do have a look at my other book Annapurna Circuit Trek: Fairy Tale of Love with Nature.)

### Chapter 1.13: Breakup with Pakistan Is Stupid

(August 2014)

I think the first international relations blunder has been made by the Modi Government. India and Pakistan are neighbors fighting over a piece of land for ages now. India went to the Judge with the dispute, who acknowledged the dispute, but then India realized its mistake and, ever since then, has been trying to withdraw the dispute without adjudication; but, of course, this Judge is different from the Indian Courts: he won't let this case be withdrawn now. So, what did India do! It started out of court talks with Pakistan and also reached a kind of agreement (Shimla Agreement), but the agreement had no legal validity in absence of the assurance of its enforcement; thus the agreement was breached at will, but the talks continued. Now, India has decided not to talk with Pakistan if it continues talking with the Hurriyat Conference and the other separatist groups, who seem to be representing a large population in Kashmir. The reason for this stance also seems to be the paradoxical approach of India of avoiding calling Kashmir a dispute but seeking its resolution through talks at the same time. India thinks if they will involve the separatist groups in the trilateral talks, Kashmir would automatically get acknowledged as an international dispute, and whatever hide and seek game it has been playing on this issue will come to an end. Well, the apprehensions are correct, but the approach adopted by India is, to say the least, stupid: by putting an inconsequential condition for talks, India has automatically brought this issue on the international map. Pakistan is now free to approach the UN once again and revive the "dispute" recorded in the file, and India will no more be able to take a position that the dispute can and should be resolved through bilateral talks without involvement of the international arbitrators/mediators. This is a monumental blunder, which can lead to serious problems in the future. Still the worst, India has walked out in such a frivolous manner that it almost looks kiddish. Furthermore, this approach of India has also closed all doors for talks on other issues like terrorism, rivers, exports, sports, media and culture.

The problem between India and Pakistan is that the militaries of the two countries have made a mountain out of a mole and have not allowed the Kashmir dispute to be settled in an amicable manner. Everybody knows the only solutions to the Kashmir problem is to either declare LOC, LAC (including Mc Mohan Line) as international borders or to create a self-governing international zone of Kashmir Valley, militarily supported by Pakistan, India and China. But for the ulterior motives of the militaries, the solution is so easy and simple that the dispute should not have taken more than a few hours to get resolved.

The problem is that the military forces across the globe are facing existential crisis. They are no more needed in the globalized world except to protect the global business interests; but, of course, this can't be recognized as a rationale for keeping such large military forces; so, they have invented this imaginary threat of global terrorism and will propagate it until they invent some thing new like the threats from the extraterrestrial bodies. India has either already jumped or is contemplating jumping into this band-wagon, and, in the process, it wants to establish and condemn Pakistan as a global terrorist. There can't be any other comprehensible reason for the approach India has adopted towards Pakistan, but I am amazed at the audacity of the Modi Government: they are trying to condemn a long standing ally of the US as a global terrorist! This can be done only if India becomes the strategic partner of the US in the east subduing Pakistan first as a junior partner and then gradually condemning it as a global terrorist. I think the invitation to Sharif at Modi's swearing-in ceremony was also to the same effect; i.e., to subdue the role of Pakistan as a junior partner in the fight against terrorism; Pakistan also seems to have accepted this role for a while, but soon the Pakistani military took over, which is definitely better informed, and then the recent infiltrations in Kashmir were self-evident. However, now in order to maintain/project its recently attained status of a senior partner, India seems to have taken this extreme and desperate step without realizing its true global status. I don't think it is possible for India in its present global status to dislodge Pakistan altogether from the international map; Pakistan will have to do something really very silly to be condemned as a global terrorist.

This is what happens when a single political party gets overwhelming majority: they start reflecting their local status into the global arena without any local criticism — all Indian media channels are promoting even this stupid a move by India.

But, for a change, the Congress seems to have played its cards cleverly this time.

(Do have a look at my other book Annapurna Circuit Trek: Fairy Tale of Love with Nature.)

### Chapter 1.14: Mission "Kill Assange"

(November 2011)

In one of the TV debates I saw a flashing note, "Canada PM (ex) _Aide_ : Kill Assange". I am sure he is not the only one who wants to kill Assange. But, unfortunately, this time their task is a bit difficult. Let me help them.

Assange is a comprehensive, new-age rebel. The lines have been drawn, and the distinction is clear. This time there are no armies, no weapons, no suicide bombers, but just "RAW DATA" facing the might of the most powerful states. Assange is good to nobody and has cared less to hide the derogatory information against the most powerful leaders of the world; that's why his data is "RAW DATA". I wonder is there anybody really supporting him! And, for that, he can't be killed so easily: If killed just like that, he will end up becoming the most daring individual ever and, of course, an inspiration for the rebels, world over. I feel pity for the Canadian PM ex-Aide; he just doesn't understand politics. Let's see how Assange can be killed:

Step 1: Project the information leaked by Assange as non-sensational, unproductive and irrelevant, and Assange himself as a money and publicity greedy wreck, so that the interest of people die down in Assange — well, this step has already been taken.

Step 2: Catch Assange, put him in Jail, and torture him to death — BTW, as per the UK authorities, Assange is hiding in the UK, but they can't catch him because warrant has not been filed properly by Sweden.

Step 3: Display the fabricated moments of remorse, desperation, helplessness of Assange, so as to make him look like a very weak person pleading for his life — and, the weak spineless people of this world would feel happy about their existence.

Step 4: Declare Assange mentally unstable, suicidal, depressed, schizophrenic, and whatever else; of course, create/fabricate evidence and show it to the world — people will pity an idiot, who rebelled without a cause, and ended up becoming a lunatic.

Step 5: Now, kill Assange and call it suicide — WOW...so easy to kill a rebel; give some prudence to this Canadian PM ex-Aide!

Addendum

I read the judgment of the UK Court on the extradition of Assange. I must say his lawyers have done a great work, but, I think, they shouldn't have withdrawn the allegations of abuse of process/collateral purpose because abuse by the Swedish authorities is apparent on the face of the record. Nonetheless, the UK Court's judgment is inconsistent: In the same judgment, a rupture of condom and the consequent ejaculation inside the vagina has been admitted to be rape in the UK (though not in Sweden), but, while actually dealing with the rape charges, the UK Court looked from a "cosmopolitan eye", which was neither the UK eye nor the Swedish eye. If I am not wrong, the presence of coercion is necessary for the charge of rape in Sweden; so, actually, the charge made out in the EAW was not that of rape as per the Swedish law. It was not rape as per the UK law either as in the UK only ejaculation, not penetration, is construed as rape; whereas, in the charge, though there was lack of consent for penetration, there was presence of consent for ejaculation. The UK court applied the "lack of consent" and found the EAW to be appropriate looking from the "cosmopolitan eye". Even then, I think the argument of Assange's lawyers has been wrongly rejected. The UK court has differentiated between the stages when the penetration takes place and when the ejaculation takes place — though I wonder can they be separated. In this case, the consent, though found present in the second stage, was found absent in the first stage as the girl had not consented for penetration without condom, and, therefore, the EAW was found appropriate. This is same as saying that when a girl agrees for ejaculation inside her vagina, you need to pump up and excite your penis without touching her vagina because you never know when she will turn around and say, "I never agreed to penetration"; and just somehow shoot the semen inside her vagina at the time of ejaculation. **Basically, only the Superheroes can ejaculate inside vaginas in Sweden; the rest can only masturbate.** The reasoning of the UK Court is ridiculous and devoid of common sense.

I think the best ground before the lawyers now is their third ground; that is, Assange is not an "accused." It seems the UK court has completely erred in the reasoning with respect to this allegation of the lawyers. If I am not mistaken, the Svea Court of Appeal in Sweden was only looking whether, from the allegations made, there were any grounds made out for investigation, as is also evident from Para 52 of the judgment. This is similar to the aspects which the Indian High Courts look into while deciding whether an FIR should be quashed by using inherent powers u/s 482 CrPC. As per the 2003 Act, an "accused" is definitely distinct from a mere suspect, who is being or is about to be investigated. I fail to understand how the UK Court could apply the UK law to term the mere suspect under the Swedish law as an "accused" when the question in consideration was EAW issued by the Swedish authorities, that too after looking at the extrinsic evidence! **How?**

(Do have a look at my other book Annapurna Circuit Trek: Fairy Tale of Love with Nature.)

# Chapter 2: Opinions (Legal)
Chapter 2.1: Aarushi Murder Case Judgment: A Critique

(December 2013)

The judgment in the **Aarushi Murder Case** (Re: The State of U.P. Through the C.B.I. v. Rajesh Talwar & Another, R.C. No.1(S)/2008/SCR-III/CBI/NEW DELHI in the court of Additional Sessions Judge/Special Judge, Anti-Corruption, C.B.I., Ghaziabad; download the judgment from https://drive.google.com/file/d/0B3C_zx4dsPdWR1N3aHJLdzltSlU/edit?pli=1) has been pronounced, and the parents have been held guilty of the murders on the basis of the circumstantial evidence. The undisputed facts of the case are that Nupur Talwar, Rajesh Talwar, Hemraj and Aarushi were last seen together on the night of 15/05/2008 in the flat owned by Rajesh Talwar and occupied by the four people mentioned above. Nupur Talwar is the mother, Rajesh Talwar is the father, Aarushi Talwar was the daughter and Hemraj was the servant; all of them were living in the same flat. Aarushi Talwar was a teenage minor girl with partial capability to make independent decisions, especially in the matter of love, sex, sports and education. Hemraj was allocated separate room opening separately into the common verandah/passage unauthorizedly converted to the use of the occupants of the flat by installing a grill/mesh door at the end of the passage (this particular fact I can't confirm in absence of a site plan, but, from the reading of the judgment, it appears to be so). The room of Hemraj also opened inside into the flat. Thus, Hemraj, for all practical purposes, was the sole independent occupant of the said separate unit, with an independent access to the said unit and with an independent mind of his own. Aarushi, on the morning of the next day, i.e. 16.05.2008, was found dead in her separate room, which opened inside the flat. Hemraj was found dead on the next-to-next day, i.e. 17.05.2008, on the terrace of the flat having entrance from the staircase lobby. The door of the terrace was locked and was broken open before recovering the body.

The prosecution theory is that Aarushi and Hemraj were murdered by Rajesh Talwar as he saw Aarushi and Hemraj in a compromising position on the intervening night in Aarushi's room, and he murdered them in a fit of rage, and that was the motive for the murders. Nupur Talwar was found guilty in the furtherance of the common intention. It is clear from the judgment that the prosecution theory on the motive of the murders has been accepted _in-toto_.

Comment: First and foremost, the crime committed in a fit of rage on a grave provocation doesn't tantamount to murder but, to culpable homicide. So, the conviction of Nupur Talwar and Rajesh Talwar u/s 302 IPC is bad in law. How are some people appreciating this judgment!

Rajesh Talwar and Nupur Talwar have been convicted on the basis of purely circumstantial evidence as the court found the prosecution was able to discharge its burden beyond reasonable doubt, to the extent they were able to prove that the four people were seen together in the same flat on the night before the murder, and that the two of them were murdered on the intervening night of 15.05.2008 and 16.05.2008 in the flat, or else that Hemraj was brought into unconscious state in the flat and removed from the flat in that state. The burden thus shifted on the still surviving occupants of the flats to prove, u/s 106 Evidence Act, the events which occurred inside the flat on the intervening night and also to prove the events which occurred outside the flat, i.e. the appearance of the dead body of Hemraj on the terrace, in consequence of the events which occurred inside the flat

Comment: I have read this judgment twice; the prosecution has nowhere proved beyond reasonable doubt that either the murder of Hemraj happened inside the flat or else he was brought into unconscious state inside the flat. On what basis the onus has been shifted on Talwars to account for the murder of Hemraj is beyond my comprehension; there is no basis even for shifting the onus for the murder of Aarushi on Talwars because there is a presence of a third independent person, i.e. Hemraj, inside the flat on the intervening night. Furthermore, even otherwise, the onus has been shifted wrongly on Talwars to account for the murder of Hemraj or to account for his whereabouts. Even if it is assumed that the murders happened inside the flat, Hemraj was an adult independent occupant of a separate dwelling unit inside the flat with unrestricted control over his movements inside and outside the flat and with even an independent access to his separate unit, and he could have provided friendly and/or surreptitious access to outsiders. Rather, no onus can be shifted also because Aarushi was an independent individual with a partially mature mind of her own with the ability to provide surreptitious access to outsiders inside the flat. The prosecution has not even attempted to prove that there was no friendly and/or surreptitious access inside the house through Aarushi and/or Hemraj. Unless such is proven, how can the onus be shifted on Talwars u/s 106 Evidence Act?

One of the strong findings in support of shifting the onus is supposed to be the testimony of Bharti Mandal, the maid servant. On the basis of her testimony, it has been held that the flat was not found locked or latched from outside in the morning. The testimony of Bharti Mandal as recorded on page nos. 86-87 of the judgment is reproduced below:

_P.W.-10 Bharti Mandal has recounted that on 16.05.2008 at about 06:00 A.M. she reached as usual at Flat No. L-32, Jalvayu Vihar and rang the call-bell of the house but no response came from inside. After pressing the call-bell second time, she went up-stairs to take mopping bucket. Thereafter, she put her hand on the outer grill/mesh door but it did not open. Subsequently, she again pressed the call-bell and then Dr. Nupur Talwar after opening the wooden door came near the grill door/mesh door situated in the passage and enquired about the whereabouts of Hemraj to which she replied that she had no idea of him and then Dr. Nupur Talwar told her that Hemraj might have gone to fetch milk from Mother-Dairy after locking the middle grill/mesh door from outside and she could wait until he returned. Thereupon, she asked Dr. Nupur Talwar to give her keys so that she may come inside the house after unlocking the same and then Dr. Nupur Talwar told her to go to the ground level and she would be throwing keys to her from balcony. Accordingly, when she came down the stairs and reached the ground level,_ _Dr. Nupur Talwar threw keys from balcony and told her that the door is not locked and only latched from outside and then she came back and opened the latch of the mesh door of the passage and came inside the house._ _Thereafter, Dr. Nupur Talwar told her "Dekho Hemraj Kya karke gaya hai" (Look here, what has been done by Hemraj). When maid Smt. Bharti went in Aarushi's room she saw that dead body of Aarushi was lying on the bed and covered with a white bed sheet and her throat was slit._ (Emphasis supplied)

**Comment: I was so surprised at the finding reached by the court that I read the above testimony five times, and even now I am trying to convince myself that I am reading the above testimony wrongly, so I have blinked my eyes several times, and, accidentally, I also know a little bit of French, so the portion highlighted above is not "French" for me. Though, I would agree** _"Mise en Crime"_ **,** _"Beaut Damsel"_ **,** _"Dramatis Personae"_ **did put me in doubt for a while. Bloody hell! The door was found latched from outside by the maid servant in the morning!**

**Comment Dt. 25.09.2015: Well...after reading Avirook Sen's book, it has now become clear that the grill door and the mesh door were not together but separated from each other by a passage. The mesh door in fact shared frame with the wooden door inside. And the door in servant's room opened in the passage between the mesh door and the grill door. The judgment has wrongly used the phrase "outer grill/mesh door", which made me misread the facts. So, the relevance of Bharti Mandal's testimony is that the grill door was locked from inside the first time she came, and the next time when she came up after fetching the keys, the grill door was unlocked but the mesh door was latched from outside, which she opened and came inside, leading to an inference that Nupur Talwar manipulated locks/latches of the grill door and the mesh door while Bharti Mandal was fetching the keys. The only counter argument to this could be that the grill door might have been jammed; therefore Bharti Mandal couldn't open it the first time. I don't know whether the prosecution or the defence evidence create enough doubts in this respect. Anyways, here I am only highlighting the manifest errors, not ordinary errors, of law/fact. The relevance of Bharti Mandal's testimony lies in shifting of onus on Talwars u/s 106, the Evidence Act. However, I still maintain that the prosecution has not proved beyond reasonable doubt that Hemraj was murdered inside the flat or brought into an unconscious state inside the flat.**

Another strong finding in support of shifting the onus is that the murder happened inside the flat, in which the rooms were separated by a partition wall, and at least one amongst Nupur Talwar and Rajesh Talwar was awake all night using internet broadband, so the commotion should have been heard. The usage of 45 KB at 2 AM and 3 KB at 6 AM has been found in the internet log (pg. 134). The defense argument of the usage being accounted for by myriad reasons has been countered by shifting the onus on Talwars u/s 106 Evidence Act (pg. 137).

Comment: This is incredible! Somebody asking you to account for 3 KB and 45 KB usages just because you own and possess the router! Any novice will tell that if a router is left open without any activity, it may download or upload 3 KB of data of its own without any triggered activity; 3 KB and 45 KB usages are so negligible that they can just be ignored. Common sense, please!

Another reason attributed for shifting the onus is the establishment of the motive. On the basis of the postmortem reports of Aarushi and Hemraj, showing whitish discharge sans spermatozoa in Aarushi's vagina and swollen penis of Hemraj, clubbed with the DNA matching of the pillow cover in Aarushi's room and the palm print impression on the terrace wall, it has been held that Aarushi Talwar and Hemraj have had intercourse.

**Comment: This is nothing but arbitrary finding. Enough expert evidence was laid to show that the whitish discharge sans spermatozoa could mean an internal discharge but not a discharge from any outside source; however, the same has been discarded giving some fancy explanations: The lack of spermatozoa could be because of vasectomy surgery; the doctor couple might have erased the evidence of sexual intercourse; etc. The expert evidence attributing swollen penis of Hemraj to purification has been completely ignored with a statement,** _"Be that as it may, the fact remains that the penis of Hemraj was found swollen at the time of postmortem examination of his dead body."_ **What is this if not arbitrariness! What! Somebody said bias!**

I won't comment on the DNA reports because there is already lots of contention on this issue with the defense contending that the clarification statement issued by the prosecution that the pillow cover, earlier mentioned as the one recovered from Hemraj's room, was wrongly so mentioned, and it was actually the pillow cover of Aarushi, is unacceptable and was falsely introduced with ulterior motives. Let it be contested.

To be very frank, this judgment is full of ridiculous discrepancies; I am not getting into the discussion of the evidence in detail; however, I am sure this judgment will be shattered left, right and centre by the defense counsels in the High Court. I don't intend to indulge in this infructuous exercise here. However, I am reproducing some glaring examples of arbitrariness in the judgment below.

(Pg. 101-102)

_It is pertinent to mention here that before 16.05.2008 they have hardly made telephone calls to each other and thus it is fully established that they were in contact with each other_ _regarding non disclosure of factum of sexual intercourse in the postmortem examination report of Ms. Aarushi_ _. Dr. Sunil Kumar Dohre has also stated that when he was on way to postmortem examination room then Dr. Dinesh Talwar gave him a cell-phone and told him to talk with Dr. T.D. Dogra of A.I.I.M.S. Although, Dr. Dohre had only stated that Dr. T.D. Dogra had told him that blood samples of the deceased Aarushi be taken_ _but it appears that Dr. Dogra had asked him not to mention in the postmortem examination report about the evidence of sexual intercourse and this fact has been deliberately suppressed by Dr. Dohre._ (Emphasis supplied)

Comment: 1) No fact proved to draw the inference of contact in regard to disclosure of factum of sexual intercourse. 2) The arbitrary presumption made about the suppression of facts, without any base facts.

(Pg. 120)

_The evidence of Dr. Sharma is not reliable because he has displayed in his website that "lawyers can have our services for their clients for better interpretation of scientific evidence against or for their clients............"_ _Thus it becomes clear that he gives report in favor of the person from whom he charges fees irrespective of the merit of the case._ (Emphasis supplied)

Comment: This should mean that the State appointed medical practitioners should give reports in favor of the State from whom they get salaries! Fantastical arbitrary presumption!

(Pg. 123)

_P.W.-39 Mr. A.G.L. Kaul has deposed that Mr. Ajay Chaddha has sent an e-mail to him intimating therein that one golf stick was recovered by him and Dr. Nupur Talwar from the attic opposite to the room of Ms. Aarushi during cleaning of the flat_ _...........Both the accused have stated in their examination under section 313 Cr.P.C. that Mr. Ajay Chaddha has not sent any e-mail on their behalf which cannot be believed in the face of the statement given by P.W.-39. P.W.-31 Mr. Hari Singh has stated that Mr. Ajay Chaddha is a relative of Talwars._ _Mr. Ajay Chaddha has not been produced to rebut the evidence of P.W.-31 and P.W.-39._ (Emphasis supplied)

Comment: The arbitrary presumption made contrary to Sec 88 A of the Evidence Act, which doesn't allow any presumption to be made of the person who sent the electronic message.

(Pg. 137)

_It is established that in the night of 15/16.05.2008 internet was used throughout the whole night intermittently and the accused were awaken. It should be borne in mind that both the accused are acquainted with the internet functioning and therefore,_ _they may have continued with the start and stop activity of internet router till 13:11:44 hours on 16.05.2008_ _with intent to confuse and camouflage the investigating agency as also to create evidence in their favour._ (Emphasis supplied)

Comment: Enough evidence in the judgment itself to prove that the couple were not using the internet but were attending to the death of Aarushi and to the police investigation. The arbitrary presumption made without any base facts.

(Pg 138- 139)

_He has categorically stated on oath that when on 16.05.2008, when he was returning to his residence after morning walks and came near the curve of sector-25 N.O.I.D.A. then saw the presence of police and government vehicles there and thought that there is some problem of law and order and therefore, he went inside sector-25 where he gained knowledge that a murder has been committed in flat no. L-32, Jalvayu Vihar and therefore, he reached there at about_ _7.30-7.40 A.M_ _. and went inside the room of Ms. Aarushi where she was found dead and her dead body was covered with a white sheet, her trouser was just below the waist...............His evidence cannot be castigated that stadium in sector 25 N.O.I.D.A. is_ _about 28 km. away from his residence_ _and it is not possible to come for morning walks after covering such a long distance. He has assigned reasons for taking morning walks in the N.O.I.D.A. Stadium by stating that during those days Greater N.O.I.D.A. was not developed and keeping in view the nature of his job, it was not safe for him to have morning walks there._ (Emphasis supplied)

Comment: The sun rises in the summers at 6.00 am, and, by 7.00 am, it is hot enough to do morning walk any more. What was he doing for half an hour in the stadium, given his residence is 28 km away from the stadium, and it would have taken him some good time in reaching his residence and then getting ready for the job? Failure to ascertain the facts correctly, and thus the arbitrary finding reached!

(Pg 151-152)

_[W]hile Dr. Mohapatra has stated that DNA profile found from the bottle was a mixed partial profile of male and female origin which were consistent with the profile generated from the blood stained palm prints and Exhibits like bedsheet, mattress and pillow-cover collected from Ms. Aarushi's room but P.W.-25 S.P.R. Prasad on analysis of extracts generated by Dr. Mohapatra from the said bottle found DNA profile of only male which matched with the profile of the blood stained palmprint and other profiles belonging to deceased Hemraj. If Dr. Rajesh Talwar had consumed neat liquor from its mouth then in that eventuality the saliva and DNA of Dr. Rajesh Talwar must have come in contact with the mouth of the bottle but no DNA could be found on it and therefore, this circumstance as relied upon by the prosecution is liable to be disbelieved._ _The aforesaid arguments do not appeal to the reason and therefore, liable to be rejected._ (Emphasis supplied)

Comment: If this doesn't appeal to reason, what does appeal!

(Pg. 165)

_The evidence of K.K.Gautam that on examination of the room of Hemraj it was observed that three persons might have been sitting in the bed as there were depressions on the bed and in the two glasses substance like alcohol was seen and it seemed that toilet of Hemraj had not been flushed and more than one person had urinated in the toilet hardly inspires confidence as this statement is based on surmises, conjectures and speculations. It is not possible at all that in the midnight around 12.00 O'Clock Krishna, Rajkumar and Vijay Mandal will come to the room of Hemraj and have liquor drinks._ _If it was so, four glasses might have been found there but K.K. Gautam has stated before the I.O. that in only two glasses substance like alcohol was seen_ _which has not been confirmed by any other evidence._ (Emphasis supplied)

Comment: For goodness sake, the people were not drinking Scotch in a five star bar but Sula in a servant's room. Complete lack of empathy for the practical realities of life, and the arbitrary finding reached thereby!

(Pg 166)

_The accused Dr. Rajesh Talwar has admitted at page no. 2 of his written statement under section 313 Cr.P.C. that he and his wife have been brought up in a very liberal atmosphere with modern outlook and at page 3 he has stated that he takes alcohol at parties. However, at page no. 4 of his written statement he has stated that whisky bottle should have been ordinarily in the cabinet. This answer itself suggests that Dr. Rajesh Talwar is fond of liquor and he used to take liquor in his flat as he himself has admitted that whisky bottle must have been in the cabinet and not in the dining table and therefore, there is every possibility that whisky was taken by the accused Dr. Rajesh Talwar._ _It is also possible that whisky bottle might have been lifted after wearing gloves. It is also possible that Sula wine may have also been taken by the accused when he was extremely and intensely in tension after committing the crime_ _or it was partly made empty to show that Hemraj and his friends had consumed the liquor._ (Emphasis supplied)

Comment: Dr Rajesh in tension doesn't forget to wear gloves but consumes Sula wine!!! Fantastical arbitrary presumption!

(Pg 169)

_It is also possible that before going to sleep Dr. Nupur Talwar might have changed her gown which she was wearing at the time of taking pix from digital camera._ _As stated herein before, being mother of the child it is not possible that on seeing her child dead she would not have hugged her. During hugging certainly, the gown of Dr. Nupur Talwar must have also been blood stained but no blood was found, which clearly shows that she had changed her gown or other night-garment, which she was wearing in the night._ (Emphasis supplied)

Comment: People don't change gowns before going to sleep rather they wear gowns before going to sleep unless they pre-plan murders, which is certainly not the prosecution theory. Fantastical arbitrary presumption!

(Do have a look at my other book Annapurna Circuit Trek: Fairy Tale of Love with Nature.)

### Chapter 2.2: Aruna Shanbaug Judgment: A Critique

(March 2011)

Para 1

The Supreme Court has apparently decided this case under its writ jurisdiction u/a. 32 of the Indian Constitution in a **Criminal Writ Petition** filed before it. The criminal law in India is very clear: Any act (which includes omission) done with the knowledge that the act would cause death of a person amounts to culpable homicide/murder; and, by implication, any person doing any such act (omission) unto himself would amount to suicide. The SC, earlier in **Gian Kaur's case** (Re: Gian Kaur vs. State of Punjab, 1996(2) SCC 648; download the judgment from http://indiankanoon.org/doc/217501/), has held that Right to Life doesn't include "Right to Die" (including right to dignified death). Therefore, the SC, in Para 4 of the **Aruna Shanbaug judgment** (Re: Aruna R. Shaunbaug v. UOI, Writ Petition (criminal) no. 115 of 2009 in the Supreme Court of India; downloaded the judgment from http://indiankanoon.org/doc/235821/), has very clearly stated that the case could have been dismissed on a short point that there is no case made out for the violation of fundamental rights. However, vide Para 98 of the judgment, the SC has also stated that, earlier in **Gian Kaur's case,** it has approved of the decision in **Airedale's case** (Re: Airedale vs. Director MHD, (1993) 2 WLR 316) to the extent that "euthanasia could be made lawful only by legislation". Thereafter, in the **Aruna Shanbaug judgment** , the SC has laid down guidelines in the cases of passive euthanasia, deriving precedence from the **Vishaka judgment** (Re: Vishaka and others v. State of Rajasthan and others, (1997) 6 SCC 241, AIR 1997 SC 3011, (1998) BHRC 261, (1997) 3 LRC 361, (1997) 2 CHRLD 202; download the judjment from http://indiankanoon.org/doc/1031794/).

Para 2

From the above, the view of the SC with respect to the legality of "Right to Die" u/a. 21 of the Constitution is not clear. If the answer is in affirmative with respect to the legality, the **Aruna Shanbaug judgment** is apparently legal **(?)** , and, by ramification, the relevant section/s of the IPC stand quashed/modified. However, if the view of the SC is in negative with respect to the legality, the judgment may be deemed legal only u/a. 142 of the Constitution, but this view is amenable to challenge as Article 142 may not grant new original jurisdiction to the SC.

Para 3

So, what has the Supreme Court done? Well, it has referred to the **Airedale decision** and got extra-ordinarily **persuaded** by it. The **Airedale decision** has recognized the common law rights of self-determination and informed consent, which, simply speaking, means that a patient with the knowledge of his death in absence of treatment, nevertheless, has a right to make a decision and give an informed consent thereof to not to be treated of the ailment and thus thereby omitting to take treatment for the ailment. The SC has, interestingly, restrained itself from discussing the case of a person with the knowledge of his death in absence of food intake, nevertheless, omitting to take food. The two cases have glaring similarities, and I wonder how a decision can be taken on the first case without discussion on the second case. I think the SC has got extraordinarily persuaded by the **Airedale decision** with respect to the view that in a case when the patient omits treatment, there is no question of the patient committing suicide, nor, therefore, of the doctor aiding or abetting suicide. I think the Indian Criminal Law is clear on this aspect: Anybody found guilty of withdrawing treatment to self with the knowledge of imminent death thereof but not actually dead is, nevertheless, guilty of attempt to commit suicide u/s. 309 IPC. So, the SC judgment in this case has, by implication, quashed/modified s. 309 and s. 306 IPC.

Para 4

Now, I will refer to my question mark in Para 2 above. This judgment is legal only if the SC has not overruled the **Gian Kaur judgment** while quashing/modifying s. 309 and s. 306 IPC but has only distinguished the **Gian Kaur judgment** in those cases when a person with the knowledge of imminent death in absence of treatment, nevertheless, omits treatment to self, for the **Gian Kaur judgment** was a larger bench judgment. However, I say that the SC has not even distinguished the earlier **Gian Kaur judgment** as neither is there anything in the judgment suggesting the same nor was there any circumstance requiring the same. So, in fact, the SC has laid down guidelines contrary to the precedent in the **Vishaka judgment**. In the **Vishakha judgment** , the precedent is that in those cases where there is a legislative vacuum in absence of a domestic codified law but, however, exists a non-codified domestic law in form of a harmonious international law, appropriate guidelines can be formulated by the SC by interpreting the said non-codified domestic law in order to fill the legislative vacuum; it would be a stop-gap arrangement to provide clarity to the citizens with respect to the existing law of the country, but it is not creation of law by the SC. However, in this case, the SC has, without overruling/distinguishing the earlier codified domestic law on the subject of passive euthanasia and attempt to suicide, created a new law in derogation of the existing codified domestic law, on the basis of the persuasive value of the international common law precedent in **Airedale's case** — the common law precedent had no authoritative value.

Para 5

In other words, the SC judgment in **Aruna Shanbaug's case** is without jurisdiction, and the people relying on it would be doing so at their own risk of being convicted of abetment of suicide or of attempt to suicide. **At least if I come across any such case, I will immediately file a police complaint.**

(Do have a look at my other book Annapurna Circuit Trek: Fairy Tale of Love with Nature.)

### Chapter 2.3: Binayak Sen Judgment: A Critique

(December 2010)

At the outset, let me state that the judgment delivered in the **Binayak Sen's case** (Re: Chhattisgarh Government v. Pijush (Piyush) alias Buboon Guha & Ors, Session Serial Number 182/2007 in the court of Second Additional Sessions Judge, Raipur (Chhattisgarh); download the judgment from http://www.binayaksen.net/2010/12/judgement-english/) is exceptionally bad. A full book can be written on it. However, I will discuss the most important angle of Section 120B IPC; i.e., the criminal conspiracy held to be proved against Binayak Sen. He has been held guilty under Section 124A IPC read with Section 120B IPC for conspiring with Narayan Sanyal and Pijush Guha in spreading hatred against the State vide certain letters held to be written by Sanyal and held to be found in the possession of Guha and held to be couriered by Sen from Sanyal to Guha, and vide various other documentary materials found to be in possession of Sen and Guha. Out of the above, the letters written by Sanyal are the biggest bone of contention because other material _per se_ may not stand the test of **the Kedarnath judgment** (Re: Kedar Nath Singh vs State Of Bihar, 1962 AIR 955, 1962 SCR Supl. (2) 769; download the judgment from http://indiankanoon.org/doc/111867/).

Vide Para 112 of the judgment, the conspiracy has been proved by two set of facts: first by the fact of movement of letters from Sanyal to Guha via Sen, and secondly by pre-existing relationship between Sanyal and Sen. Out of these, Sen acting as a courier is the real bone of contention as existing relationship _per se_ doesn't mean anything; criminals have every right to undertake perfectly legal activities of getting married, opening bank accounts, renting houses, taking up teaching jobs, etc., and can seek help from non-criminal persons for the same.

As far as the fact of Sen being a courier of Sanyal is concerned, it has been proved by two types of evidence: First by the circumstantial evidence of meetings between Sen and Sanyal in the jail linked with the forensic evidence of the letters written by Sanyal found in the possession of Guha, and secondly by the corroborative evidence of the witness of Anil Singh, who heard Guha stating it in the presence of the police officer that the said letters were delivered by Sen to Guha. Vide Para 16 of the judgment, the objection of the defense counsel to the inclusion of the statement of Anil Singh with respect to the statements made by Guha in presence of the police as being inadmissible, has been overruled finding the same to be relevant evidence under Sections 8, 10, 17 and 21 of the Indian Evidence Act. Here, the evidence found relevant under Section 10 is important. The evidence found relevant under Sections 17 and 21 is inadmissible as the statement by Anil Singh about the admission of Guha convicting Sen is hearsay evidence. The evidence found relevant under Section 8 is inconsequential without the evidence proving the main facts. So, the evidence found relevant under Section 10 is the only relevant evidence. But, the evidence under Section 10 is admissible subject to the proof of the _prima-facie_ conspiracy. But, in the above judgment, the fact of Sen acting as a courier has been used as a main fact to prove the "Unity of Mind" vide Para 112 of the judgment. And, as already stated, the evidence led to prove pre-exisiting links between Sen and Sanyal and Sen and others don't prove any pre-existing conspiracy.

Moreover, vide Para 27 of the judgment, the linkage of Guha with Naxals has been proved on the basis of an FIR, and no other evidence has been produced. This once again is a very weak evidence of the involvement of Guha in Naxal activities. Rather, the proof against Sanyal is also very weak: Most of the evidences against him are the general opinions, not factual statements, of the police officers about his involvement in Naxal activities and/or Naxal groups, and thus they are inadmissible. The strongest evidence against Sanyal is that of some intelligence report prepared by the AP police, but nothing much has been said about it in the judgment; i.e., whether the facts mentioned in the report were proved by the examination of the investigators, etc. BTW, the announcement of award against Sanyal by the AP Government is no proof of his involvement in Naxal activities. Evidence against Sen is the weakest, all of it being either hearsay evidence or opinions.

So, when the prosecution has not even proved the involvement of Sanyal and Guha in Naxal activities, where is the question of any conspiracy? Subject to the belief in the finding of the Judge that the affidavit filed by the prosecution in the Supreme Court was a genuine typological mistake, the letters written by Sanyal have been proved. It is also true that Guha has not been able to prove the bonafide source of possession of the letters. But, the prosecution has not been able to arrange the missing links. It seems Sanyal's name has been added to somehow solve the puzzle, and the story has turned out worse than a third-grade Bollywood movie.

Seriously bad judgment! I empathize with Ilinia Sen when she says that the judgment would have been ridiculous if it had not happened to them. After reading this 92 page judgment, that too in Hindi, I am amused at the state of affairs in this country but at the cost of several lives lost in prisons. **What has happened to my sense of humor?**

(Do have a look at my other book Annapurna Circuit Trek: Fairy Tale of Love with Nature.)

### Chapter 2.4: Right to Information: A Review

(June 2013)

Application Processing and Fees

The RTI Act provides for charging of the fees under three sections: Section 6(1), Section 7(1) and Section 7(5). I am surprised that till date the government has not laid down any rules for the collection of fees u/s 7(1) — this is not the same as initial application fees of Rs. 10 charged u/s 6(1). Of course, the fee charged u/s 6(1), the RTI Act is ludicrous: A single communication to an applicant leaves the government short. Further, I have serious problems with the payment of initial application fees of Rs. 10 _per se_. It just doesn't serve any purpose except for creating bureaucratic hurdles and wasting time. Much better would be to accept the RTI requests via e-mail or directly on the websites sans any initial fees and to ask for the processing fees u/s 7(1) later on if the application is found worth processing. This intimation about processing or non-processing of the applications can be sent to the applicants via e-mails and SMSs and can also be put up on the websites within a week's time or lesser. Of course, at the same time, a person can be given a choice to file the initial application offline along with an adequately stamped self-addressed envelope.

The PIO

The PIO has been projected as a friend under the RTI Act, i.e. Section 5(3), but that is precisely what he has not emerged as; he has rather emerged more as an adversary, and that's the reality! I think those PIOs who fail to understand their responsibilities under the RTI Act should be given harsh punishments at the instance of the applicants, but I am sorry to say that the faulty CIC proceedings endorsed by the Higher Judiciary has turned the CIC into a cozy club of senior bureaucrats protecting their junior counterparts: How can the CIC conduct penalty proceedings u/s 20 all of its own without presence of the applicants!

Appeals

The first appeal is a farce, and it just wastes time: No FAA ever overturns the decision of the PIO; in fact, in many offices (like in that of the DP), the PIOs themselves prepare the FAAs' orders, and the FAAs sign them as routine bureaucratic exercises. First appeals are useless. Period!

Second appeals are very slow. I fail to understand when a time limit has been fixed up for the disposal of the first appeals, then why not a time limit for the second appeals as well? When will they understand that delay is the deadliest form of denial! It takes six months to get the first listing in the CIC in the normal course, which is ridiculous, and still there is no provision for urgent hearing except for the senior citizens. I think the normal Judiciary works far more efficiently than the CIC: At least they grant urgent interim orders.

Orders

The CIC don't understand evidence. I have read many orders of the CIC and have found many of them wanting in following the fine rules of evidence and NJ. At times, they go overboard, but, at others, they falter badly. For example, in the recent decision of the CIC on political parties, the CIC unnecessarily issued notices to the L&D department when they could have just asked them to produce the necessary documents; however, at the same time, they made an arbitrary generalized assumption that the political parties receive substantial amount of funding from the government and, in consequence, put up the onus on the NCP to prove that the subsidized land and the other concessions they got from the government did not form a substantial part of their funding. When the matter goes before the HC, this one procedural irregularity may lead to an unnecessary advantage to the political parties in an otherwise pro-people order. The CIC could have easily asked the political parties to render accounts, with or without an application for the same on behalf of the applicants, and that would have made the proceedings regular. Surely, there is a strong need for the inclusion of judicial members in the CIC.

(Do have a look at my other book Annapurna Circuit Trek: Fairy Tale of Love with Nature.)

### Chapter 2.5: Justice Verma Committee's Proposed Amendment to IPC: Critique and More

(March 2013)

Critique

My critique of the amendment proposed in the IPC by Jusitce Verma Committee (Re: Appendix 4 at http://www.thehindu.com/news/resources/full-text-of-justice-vermas-report-pdf/article4339457.ece):

Section 100: S 326A is not only grievous hurt; "which shall include" creates confusion about the intention of the Legislature; the courts may misinterpret the provision to allow this defense even in those cases where no case for the apprehension of grievous hurt is made out.

Section 166A: Five year punishment is draconian.

Section 166A (c): "Record" needs clarification. Is it only an entry into the book as specified or a recording in any other form will also do? Section 354: 5 year rigorous punishment for touching inappropriately is draconian and grossly impractical. People will stop traveling in public transport.

Section 354A: No rigorous punishment for attempt to disrobe a woman in public place! No separate offense for actually disrobing a woman! No separate offense for creating videos or in any other manner recording the act of disrobing a woman! No separate offense for publishing the records so created! No separate offense for disrobing or attempt to disrobe or creating records or publishing record with respect to a man!

Section 354B (explanation): Is viewing an offense or is dissemination an offense?

Section 354B: No separate offense for creating records without consent! No separate offense for dissemination/publication of records so created! No separate offense with respect to sexual acts of men!

Section 354C(1): "monitors" is very wide. Does it include even monitoring without use of any intruding programs, i.e. without any hacking. If yes, then I am LOL — BBye.  
Section 354C(1)(iii): What is "reasonable"? Is spying by recruitment agencies or recruiters reasonable? I think it is not. Am I being reasonable!

Section 370 (7), section 376D and section 376E: Does "rest of that person's natural life" means overriding s. 55 IPC?

Section 375: I had much rather had it gender neutral; women can at least enter into fellatio without consent (as defined in the section or even otherwise) and even penetrate anus without consent. Can consent be for a particular act but not for another act in the same transaction? Can consent be in writing for a specified period for all or some acts? The differentiation between Sexual Assault and Rape, as proposed, is important and welcome.  
Section 376(3), section 376B(2) and section 376C: Does "rest of that person's natural life" means overriding s. 55 IPC? If not, then there is a serious contradiction as s. 55 will not apply to 20 year punishment.

Making all offenses against women cognizable and non-bailable is draconian and arbitrary. It will give arbitrary powers to the police, especially in minor offenses of voyeurism, stalking, and minor sexual assaults. Furthermore, all the offenses have also been made non-compoundable; I think many of these offenses can be made compoundable, either with or without the permission of the Court. There are mainly three viewpoints in Feminism: the Radical View, the Liberal View and the Socialist View. The amendments proposed in the IPC in the report are greatly influenced by the Radical Feminism, which is a very negative sign. The Radical feminism _per se_ is regressive and violent: It is the female version of right wing extremism. Moreover, the report is not even comprehensive in dealing with the offenses with respect to sexual privacy.

However, my biggest problem is the reverse gender bias that has been propagated in the report: disrobing, voyeurism, rape, etc, are gender neutral, and there is no reason to believe that the perpetrator can't be a woman, and the victim can't be a man. Not making the law gender neutral propagates the view that the women are inherently shy, and the law should protect their modesty; this is an irrational view and greatly responsible for the subordination of women; the proposed amendments propagate this view even further.

I feel there is a strong corporate influence in the preparation of this report; the corporate should just get out of this business of law making because they conduct their affairs most arbitrarily, and they just don't understand the concept of equality and rationality — this I can say from my personal experience.

I am deeply disappointed and give thumbs down to the amendments proposed in the IPC in the report.

The Government Ordinance

The Cabinet has cleared an ordinance with respect to amendments in the criminal law in reference to the Criminal Amendment Bill 2012 and the recommendations made in the Verma Committee Report. There are the following lacunae in the proposed ordinance:

1. Death penalty is regressive. If a victim is left in a vegetative state, it is his/her misfortune. He/She can take revenge by killing the perpetrator himself/herself, and, for doing that, he/she doesn't need the help from the State; and, then, when the State punishes him/her and his/her accomplices for murder, he/she and his/her accomplices can plead lesser punishment for obvious reasons.

2. Section 354, section 354A and section 354B have not been made gender neutral. I fail to understand the difference between a man watching a woman naked or a woman watching a man naked. Both are voyeuristic unless the State wants to attach value to women's modesty; ditto for sexual assault and disrobing.

3. I am completely surprised why the Justice Verma Committee has not made creation and/or dissemination of voyeuristic videos as offenses. These, by far, are much graver offenses. The ordinance also doesn't provide for these offenses. Is it because the State and the power elites are themselves creating these videos to maintain the _status quo_! Most of these videos are created by the politicians, the police, the corporate and other influential people, almost for ages now. In the US (may also be in India), the corporate install stealth cameras in washrooms, and, when caught, they say it was being done in organizational interest as corporate spies deliberate strategies in washrooms. Now, even student hostels have started installing these cameras with the approval of the parents in pretext of protecting the students. Of course, the elites, who have never been caught and will never be caught, will keep seeking entertainment through these videos, and the common man will be punished for watching them — it's like saying those who manufacture and trade in drugs will not be caught, but those who do drugs will be punished. Now, the videos have started getting circulated in masses through Torrentz, Youtube and what ever else, and the videos are also leaked by these power elites for punishing those who don't follow their dictates. It is clear where these recommendations are coming from; ditto for disrobing.

Marital Rape

There is lots of debate about marital rape. Personally, I am in favor of making it an offense because it would be progressive. But, there is a very strong pre-condition for doing that: The personal laws of all religions need to give way to a religion neutral uniform civil code, which wouldn't provide for restitution of conjugal rights, which means that the marriage will cease to be a sacrament as in Hindu law and a one-sided contract as in Muslim law, and the courts will acknowledge the restitution of conjugal right as an infringement of Right to Privacy. I don't see it happening any soon because society has not yet reached that kind of maturity, and the personal matters are best left for a gradual change — even the British couldn't push English law in the personal affairs of the Indians.

Further, I believe, s. 497 IPC is a big hindrance: S. 497 IPC punishes adultery by an outsider male who infringes marriage and enters into an adulterous relationship with a married female without the consent of the husband; however, the reverse is not punishable; i.e., an outsider female who infringes the marriage and enters into an adulterous relationship with a married male is not an offender. Though s. 497 has been included in chapter XX of IPC dealing with offenses relating to marriage, but the message is clear: It considers a married female as property of the husband, bound to have sex with him and him alone unless he consents to extra-marital affairs, and it is no provision to maintain the sanctity of marriage. This means if a married female doesn't want to have sex with the husband, she can't have sex at all except with a willing criminal. Marriage is an institution to propagate the association and institution of family; institutions are accepted form of procedures by the society for individual and group inter-relationships and are amenable to change and do undergo change, and the institution of marriage has in fact undergone change: No sane man believes his wife to be his property anymore. Adultery otherwise is a valid ground for seeking divorce, but, ironically, this provision resists a woman from seeking divorce because during the period of litigation she would be forced to live in celibacy, whereas the husband can keep having adulterous relationships at will: What can be more regressive than this! This is the most regressive provision in the IPC, which has been retained from the English law; the provision has been done away with in England, but it continues to be retained in India. **I fail to understand why no women group or the Verma Committee or the government itself hasn't recommended its deletion.**

(Do have a look at my other book Annapurna Circuit Trek: Fairy Tale of Love with Nature.)

### Other Books by the Same Author:

Annapurna Circuit Trek: Fairy Tale of Love with Nature

Kerala Hugged, a Travelogue

 Nine Poems Series

Claims on Privacy: An Essay

Anti-National Humanist

 Sparks: Satire and Reviews

 Light: Philosophy

 Writings @ Ankur Mutreja

Visit ankurmutreja.com for downloading the above books; for readings author's blog; for following him on social networking websites; for leaving a feedback; for starting a chat with the author; and for more.

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