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“In a rule of law society operating under a constitutional order, either deterrent or preemptive executive action against prohibited human conduct including terrorist acts must be pursued only within the matrix of legislatively spelt out substantive and procedural rules of engagement and sanction. The executive, whether political or the professional has no legitimate authority to act in derogation, independent of or beyond the sanction of law. This is the price civil society and all institutions of government willingly pay for a constitutional way of life.”

 

Perhaps one of the most interesting and profound judgments off late has been that of Andhra Pradesh Civil Liberties Committee v. Govt. of AP, where the Andhra Pradesh High Court was deciding whether it is obligatory to file a First Information Report against the police officers who may have committed ‘crimes’ while taking part in an encounter. The judgment has come at a time when the country is grappling under terrorism, naxal ‘disorder’ and acts allegedly threatening the sovereignty of the state.

To elucidate the issue; when the police forces take part in an encounter that lead to the killing of persons, it was not possible to lodge or move ahead on filing an FIR by the victim. The apparent reason being because such acts were committed in exercise of the right of private defense and the executive then, in its discretion had the authority to dismiss the complaint. Furthermore, the state claimed immunity from disclosing the name of the police officers involved in the encounter operation thus making it difficult for an investigation to move ahead. These were the issues that the five judge bench of the Andhra Pradesh High Court was called upon to decide.  

 

“In this case, the Court [was] called upon to identify the balance between the right to life of presumptive serious offenders of law and order and of the equilibrium of civil society; and the sovereign obligation of the State to maintain such law and order equilibrium, within the context of constitutional injunctions and legislative authority.”

In its ruling the Court held that it is obligatory on the police officer in charge of a police station to record an FIR under Section 154 even if it be committed against a police officer. In recording the FIR, the police officer cannot exercise any discretion in terms of the whether the offence had been committed or the complaint has any merit. This shall be the job of the judiciary and the existence of the claim of self defense is an extremely legal question that has to be determined only by a judicial process.

The judgment also delves upon certain essential principles of criminal law theory that would be useful for any law student.

In effect then, the Court negated an idea of immunity that could have been given to police officers that may have committed crimes in the guise of encounter deaths. Fake encounter killings are not inane to the Indian situation. Places like Kashmir, Gujarat, Punjab, Maharashtra and Andhra Pradesh was witnessed numerous instances where such encounters have occurred and this judgment of the Court re-iterates on the preservation of the rule of law and not giving a free hand to the police to kill.

This landmark judgment then came as a blow to the state government and the Centre who wanted some powers to check actions threatening the sovereignty of the state. When the case was appealed to the Supreme Court, the Court ordered a stay on the operation of the judgment and has scheduled a hearing soon.

Lord Cooke of Thorndon stated that his admiration for the Indian Courts (mainly the Supreme Court) in its ordinary work, particularly in the field of human rights, is no whit abated. He cited the judgment of Anand J. in DK Basu v. State of West Bengal to justify his statement. It takes a lot of courage for a Court of law to rule against a state policy and stand up for the protection of human rights. Though at times I have expressed by disgust for the way our judicial system works, these are solitary times when I wish I could retract my statement. Landmark decisions indeed !

 

Readers may also read Law and Other Things  on the case and developments therein. 

 

 

Ahmed Harun, Sudan’s Minister of State for Humanitarian Affairs has given an interview to the guardian and protested his innocence for the death of more than 250,000 people in Sudan. This comes at a time when the International Criminal Court has charged Harun with the crime of genocide and asked for his arrest.

Mr. Harun’s contention is that the evidence against him has been concocted by the international community and he has vowed not to submit himself to the international criminal court.

Readers may also read this excellent post on the Genocide convention and its relevance in the world today.

With each passing day, my conviction that the Supreme Court of India has gone beserk in its handling of issues gets confirmed to a greater degree. What was the Court thinking when it admitted the PIL by Soli Sorabjee asking the centre to implement rules for better equipment and reforms to the police ?

The petition is founded on the false ratioanale that Article 21 confers the positive obligation on the State to protect the people and that presently the state authorities are not equipped to do so. The Constitution, literally read, does not mention this and looks at Article 21 as a negative obligation. Added to this is the fact that incorporation of positive obligations under Article 21 is the creation of judicial decisions itself. The first question then is whether there is an uncontestable duty of the state to protect its citizens under the Constitution. The question specifically has never been held or dealt with by the Supreme Court. Infact, the only instance where this was found was in a 1996 Delhi High Court judgment of Bhajan Kaur v. Delhi Administration, CWP 1429/1996 . In that case, the Court held;

“the expanded meaning attributed to Article 21 of the Constitution it is the duty of the State to create a climate where members of the society belonging to different faiths, caste and creed live together and, therefore, the State has a duty to protect their life, liberty, dignity and worth of an individual which should not be jeopardised or  endangered.”

One may argue however, that references to public order, security of the state and the presence of Article 355 bring out this duty to protect. True, but this in no way makes the issue as unequivocal as the petition makes it to be.

More so, by asking the Court to interfere in the Executive’s handling of terrorism, it is transgressing into the very idea of separation of powers and constitutional limitations. Relevant in this regard is the decision of the Court in Asif Ahmed v. State of Jammu and Kashmir, (1989) Supp 2 SCC 364 stating,

“Although the doctrine of separation of powers has not been recognized in India in the rigid sense, the Constitution makers have meticulously defined the functions of various organs of the State. The legislature, executive and the judiciary have to function within their own spheres demarcated under the Constitution. No organ can usurp the functions assigned to the other. The Judiciary has no power over the sword or the  purse.”

But in Vineet Narain v. Union of India, AIR 1998 SC 889 the Court ignored this idea and ordered the CBI to handle the investigations into the corruption of politicians in a manner that it thought fit. This was the starting point from when the Court started interfering in decisions of policy by the executive and the working of Investigative agencies. Now, with the way things seem to be going, the Supreme Court is going to issue a mandamus to the centre asking it to equip the agencies with arms and weapons as it (the judiciary) deems fit. Nothing actually gets more ridiculous than this.

My understanding is that this action by the Court has got nothing to do with the Constitution but our judges engaging in populist actions so as to get the support of the people. I would advise readers to read Larry Kramer’s article on Popular Constitutionalism wherein he makes the argument that most often than not, Courts transgress written constitutional principles and form their own opinions that take the shape of constitutional law only to bring forth the image of the Court as a defender and protector of the people. The very idea of engaging in something like this is flawed and injures the working structure of our Government.

People argued that the Indian Supreme Court went on such a path to shed its image after ridiculous decisions like ADM Jabalpur v. Sivakant Shukla given during the time of emergency. This apparently was one of the reasons for Bhagwati J to introduce PIL in SP Gupta v. President of India. If this is true, then three decades are more than enough to show a degree of remorse for those actions. The present state of unprecedented actions by the Court are a display of how powerful our Court actually is and it would be interesting to see if the Centre would have the guts to put its foot down and ask the Court not to be involved in its business.

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My essay for Constitutional Theory titled “Despotism in a New Form: Judiciary and the Constitution in India” discusses the manner in which the Court has gone on to engage in judicial activism and the rationale it uses to do so. I then seek to answer the question as to whether we to have a system of judicial supremacy in India even though the Court explicitly denies it. The essay may be found here.

Prof. Larry Kramer’s recent book on Popular Constitutionalism may be downloaded here.

News articles on the issue;

1) SC asks Centre about Equipment for Cops

2) Sorabjee moves the SC

3) SC notice to Centre on PIL to equip police

One of our readers Jeffery Anderson sent us an article on a recent death-by-stoning in Somalia. The article is written by Prof Sumbul Ali-Karamali from his book, The Muslim Next Door.

The views in this article are of the author himself and do not in any way represent the opinion of The Social Blog.

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Stoning to Death for Rape is Barbaric, Uncivilized, and Un-Islamic

By Sumbul Ali-Karamali,
Author of The Muslim Next Door

A few days ago, I read that a 13-year-old Somali girl had been stoned to death for being raped by three men. I could hardly bear to read it, as sickened as I was, and as revolted that the criminals carrying out such a barbarous act – the stoning, I mean, though the rape was barbarous, too – would call themselves “Islamic.” They might have been Muslim, but they certainly weren’t “Islamic,” because murder is condemned by Islam.

The militants claimed the girl was twenty-three, but even if she had been 90, her death would still be murder.

Implicit in this news story, the unmentioned elephant in the room, was the assumption that that this Somali stoning had something to do with the ancient punishment of stoning for adultery. Contrary to popular belief, the 1400-year-old Qur’anic punishment for extra-marital sex, for both men and women, is 100 lashes, not execution. Nevertheless, in the man-made books of Islamic jurisprudence, the penalty for adultery by unmarried persons remained 100 lashes, but that for married persons became execution – but only according to some early Muslim scholars, not all. No one knows quite how this happened. It’s possible that it came from Judaism, under which stoning was the punishment for adultery in the 7th century; Muslims have always considered themselves to be religious brethren to the Jews, and a story relating to the Prophet implies influence from Judaic law.

But rape is not adultery. Rape is a violent “taking” crime, more akin to the violent taking of life or the violent taking of property than to consensual sexual relations. The victim is not punished when she has suffered a violent taking crime. Rape, therefore, should never even have been associated with the Islamic law of adultery.

And even if this child did have consensual sex, there is no possible way she could have been guilty under any form of Islamic law.

Why? First of all, no one can be punished, under Islam, without a trial.

Even more significantly, for a conviction of adultery for either a man or a woman, Islamic law requires the unimpeachable testimony of four eyewitnesses to the act of intercourse itself. And, they must witness the actual unlawful penetration, mind you; two people under a blanket does not qualify.

Moreover, under the selfsame classical Islamic law, a court can dismiss a conviction of adultery if the defendant (this applies to men and women both, remember) can show duress, fraud, decreased mental or physical capacity, mistake, or repentance. Duress is clearly present in a case of rape.

And even if the prosecution can produce those four eyewitnesses and prove that they’re reliable – the penalty for perjury is 80 lashes – and still the defendant cannot show any of the defenses (anyone should be able to show repentance, surely?), then the judge may still nullify the punishment if he or she feels the slightest doubt about the conviction or for any other reason.

In other words, even in classical Islamic law, the crime of consensual extra-marital sex was a deterrent punishment, purposefully made so impossible to prove that the punishment could not be applied.

Islamic adultery laws were meant to protect the woman. A woman’s chastity has often been, in patriarchal cultures, connected to her family’s honor. Gossip about a woman’s chastity could destroy her future. So the Qur’an commands that gossip about a woman’s chastity must be resisted, because it is not something of which we should be speaking. In other words, if there’s a question of chastity, bring the four eyewitnesses and provide the nearly impossible proof; otherwise, be quiet.

So even if this had been a case of consensual extra-marital sex, for militant thugs in Somalia to sentence a girl or a woman or a man or anyone else to a summary execution that violates Islamic law on so many levels would have been sheer murder. Because this was a case of rape, it’s so much worse than murder – it’s murder plus the barbarous pollution of an entire justice system.

And is it bestial human nature that compelled 1,000 people to pack the stadium to watch the child die? The same nature that made public hangings in England a spectator sport? Or lynchings in the United States? And if it is, at what time in our evolution will we finally purge ourselves from it?

As an American Muslim woman, I have the luxury of education. I don’t worry about my next meal. I have access to medical care. I am literate and have, compared to most of the world, endless resources with which to educate myself. But in war-torn Africa, suffering from high illiteracy rates, abject poverty, hunger, authoritarian governments, and rebel movements that style themselves as “Islamic” to legitimize brutality that is antithetical to Islamic law, what defense do women have?

We in the industrialized world must address the underlying problems of the developing world if we are to put a stop to these sorts of horrific crimes, whether they’re carried out in the name of religion or not. Islam, like other religions, limited the violence of the time in which it was revealed. What passes as Islam these days in many parts of the world is often an amalgam of culture, politics, expediency, and religion. Greg Mortensen, author of Three Cups of Tea, understood years ago, despite no background in politics, that the way to prevent violence was education; the way to prevent terrorism was education.

I don’t mean to naively simplify; certainly a myriad of factors contribute to situations like that in Somalia. But if the people in Somalia had the luxury of education, like I do, then – just maybe – this little girl might not have been a victim.


©2008 Sumbul Ali-Karamali

Author Bio
Sumbul Ali-Karamali grew up in California frequently answering difficult questions about Islam and its practices posed by friends, colleagues, and neighbors. (“What do you mean you can’t go to the prom because of your religion?”) She holds a B.A. from Stanford University and a J.D from the University of California at Davis and earned a graduate degree in Islamic law from the University of London’s School of Oriental and African Studies. She has served as a teaching assistant in Islamic Law at SOAS and a research associate at the Centre of Islamic and Middle Eastern Law in London. Her book, The Muslim Next Door, is available from White Cloud Press.

Its soon going to be six years since the Gujarat carnage took place in our ‘Democracy’. The actions we have seen so far have not been surprising. The Chief Minister gets re-elected, none of the people who arranged the attack on the muslims have been prosecuted yet and off late, the Court yells at one person who has been instrumental in getting justice to the victims of the carnage.

Let me begin by re-counting some of the incidents to most of my readers. The Tehelka issue on the Gujarat riots have been quite helpful in helping most of us re-visit the events. For people like Babu Bajrangi, the magazine is his worst nightmare. Surely it should be so when he is caught in the sting operation which giving an account of the Naroda Patiya massacre.

“Kauser Bano, was nine months pregnant that day. Her belly was torn apart and her foetus wrenched out, held aloft on the tip of a sword, then dashed to the ground and flung into the fire. Bajrangi recounts how he ripped apart “ek who pregnant b******d sala”; how he showed the Muslims the meaning of wrath – ‘if you harm us, we can respond- we’re no khichadi kadhi lot”

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Then there’s also 22 year old Sufiya Bano who was raped and burnt in front of her father and when the father and three sons went to save her, the sons were killed and the father beard was cut off.

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Naroda is an open area with a large pit that is actually a cul de sac – a slope leads into it from one side but the other side is a sheer rise that cannot be scaled. Several muslims had sheltered there; the mob surrounded the pit, poured fuel into it and set it afire. Around 200 people have said to have died in it.

Without going further in recounting these horrid tales, it must be stated that the action taken against those who were involved(hindus) in these crimes is as good as nil. On the other hand, the Supreme Court has denied bail to each of the 84 accused (muslims) of the burning of the Sabarmati express and all of them have been in jail for the past six years.

This is the irony of the Indian governance system. We are told that we are a democracy where everyone’s rights would be protected and there shall be no arbitrariness involved but on the other hand, communalism has penetrated so deep within us, that it is evident in the everyday actions of our Government. Most of the muslims in Ahmedabad still live in ghettos with inadequate facilities of water and electricity while Modi and his compatriots manage to come to power on the pedestal of “Gujarat Shining”.

Now when most of these issues are highlighted by Teesta Setalvad in an article, she gets a highly critical reaction from the Court. Well the article highlighted the fact that the Supreme Court had not done enough to deliver justice to the victims of the Gujarat riots and in fact was delaying the hearing time and again and not giving it much importance. This in a country where the Court has held that “Justice delayed is at par with Justice denied”. She also raised the following questions;

  • · Can no questions be asked about the systems in operation in the Supreme Court of India?
  • · Which matters get automatic priority and which do not?
  • · Which matters suffer because of the delays and interim orders of the Supreme Court?
  • · Is there no prioritization of cases where issues of personal liberty, denial of basic fundamental rights, mass crimes and impunity to the rich and powerful is concerned?
    If we can ask no questions, we will receive no answers.
  • · The time has come to question the basic accountability procedures of the highest court in the land.
    Has the Supreme Court of India lost its soul and is it turning a blind eye to cases related to fundamental rights violations?
  • · If so, where then do we turn?

In reply, when the Court was to hear the case on the 16th of this month, the Court was apparently fuming over the article and went to the extent of asking the lawyers whether they had any association with Teesta and if so, that they wouldn’t be hearing the petition. Well, quite juvenile I must say in a land where free speech is a highly cherished ideal.

So while the we enter the Sixth year since the riots took place, a lot of questions are raised about the efficiency of the administration in maintaining order and securing justice to the victims. In addition to this, it is disheartening to point out that even still we don’t have a law dealing with mass crimes in India and the Communal Violence Bill has not yet been passed. Like I said earlier, the irony of Indian democracy.

(See articles in the hyperlinks provided in the text)