Letter to Readers

Photo: www.theatlantic.com

Dear Readers,
I am writing this open letter to announce to our readers that my year long tenure has finally come to an end.
It has been a privilege to coordinate content for this blog until now. Our blog magazine today has readership, recognition and authenticity. Read by policy makers to Judicial minds, we are happy to retain this class magazine status.

The story of this blog starts with a question by former World Bank Chief Counsel and National Judicial Academy Director Dr. Mohan Gopal. After his class at our college, Dr. Gopal asked 'why don't you people start a blog?'. There begins the journey. Initially named as Indian Legal Watch, it was changed to 'Government Law College Thiruvananthapuram Students Blog on Kerala Legal Affairs' on the directions of Dr. Mohan Gopal himself.

On my resignation from the post after the end of one year, I remember the following persons whose help at different times make us stand as of today. Thanks on behalf of our team

To our Editorial Board Chairman Dr. P.G Balachandran Pillai. He is the one on whose supervision this was set up. I remember words- 'Nebil, if our intention is good, then god will definitely get things in favor of us'. He is the real example of how a Board Chairman should be. He never interfered in the Editorial freedom and we all love him because of that.

Special thanks to Adv. Nisa Fasil for motivating us and pushing us ahead. Thanks a lot for providing us with facilities including your laptop, internet connection and office for this blog.

This blog can never forget the contributions of Dr. Justice V.R Krishna Iyer. Our lead matter was an article by him. His Lordship provided us with dozens of articles, statements and interviews. We are indebted towards you. His Private Secretary Mr. Ramanathan took a lot of pain to dictate, take down notes and get it typed for us. We can never forget you also.

First interview was with former Director General of Police Shri. MGA Ramen. This great man gave us two slots for the interview. One time at Cochin and next at Thiruvananthapuram. I even today have his hand corrected copy of the draft of the interview. Great gentleman.

Prof. Manoj Krishna from our college wrote for us and also did what ever possible to promote this blog. He always helped in the time of crisis, gave us guidelines and asked other students to write for us. He gave us excellent contacts like Adv. Jayesh Pillai, who also helped us in many ways.

Our distinguished reader and the senior Journalist who broke the 2G scam, J Gopikrishnan offered to write a piece on Criminal Lawyers. We were on cloud 9 hearing that. We got a blog post which was most widely read and criticized.

Ashraf Padanna (Foreign Correspondent of Gulf Today and Oman Observer), the first media person to recognize our existence. His news stories in the backdrop of our interviews gave us recognition and appreciation from the readers and interviewees.

John Mary Joseph (Resident Editor of Deccan Chronicle) for recognizing that we exist in this world.

Syam Devaraj (Correspondent, Kairali TV), for scrolling the news that we published. His works gave us authenticity.

Vivina (Correspondent, PRD) for taking pain to verify news relating to the government. Thanks for helping us even at the peak of your work schedule.

VR Rajiven IPS, for his help at multiple times. His interview was a great encouragement to many civil service aspirants. Your support from the prior launch days is deeply remembered.

Jacob Punnoose IPS, for his help and support, not sure that he actually remembers us. His accommodating attitude always helped us to do stories.

Sudheer Mukkam, Journalist at Madhyamam for equipping us with an interview of former National Judicial Academy Chief Dr. G Mohan Gopal. His interview gave us hope during those difficult times before the launch.

Shasthamangalam S Ajith Kumar for that interview which was carried by Gulf Today, Oman Observer, Deccan Chronicle and Kairali TV. First interview in a court corridor.

Dr. Mathew Kuzhalnadan, National Secretary of Indian Youth Congress, for his encouragement and cooperation. I remember well about your query about the blog during your college visit and desire to see the team behind this initiative. His visit had a positive impact on us.

Adv. Kiran Lal, for coming down to meet us and encouraging us. One of the most positive person I have ever meet. A 'Dil Mange More' attitude. His article on SSB was also widely read.

Prasanth Nair IAS for his email interview. Encouraged students from law background and also outside. Promptness in giving the interview is appreciated.

Adv. Moharaj Gopalakrishnan. Spl Prosecutor in Enrica Lexi case, for granting us time for an interview even at night amidst busy schedule and thanks for giving us an opportunity to talk to the Investigation officer in Enrica Lexi case. Thanks a lot Reju Prasad for fixing that interview with Mohan Raj sir.

Garima Tiwari. One of our most respected readers and critique. We had the privilage to interview this young legal wizard. Her knowledge of International Criminal Law always amazed us.

Adv. Simla Prabhakaran for giving us your frank and independent opinion on various issues. Her knowledge of law at this young age always amazed us. Also thanks for taking part in our discussion.

Adv. Jayesh Pillai, Mumbai High Court, for always guiding and motivating us. His expertise in law was at our doorstep a couple of times. Thanks for writing for us and offer to do the new one.

Jino M Kurian, Student at NALSAR for his writings that is always different. He was dare enough to stand against the view propagated by the main stream media and support P.J Kurian. His other writing was also excellent. He gave all the power to the Editor to rewrite his article, of course without changing the basic structure. Luckily we never had to do anything of such a proportion. We love you a lot.

Abdullah Karuthedakam is a great friend and regular reader of our blog. The email lists provided by him was a great help. We were able to win over a large number of audience with your help.

Vimal Koshy is our Special Correspondent and Technical Expert. His Sony Voice Recorders was used in majority of the interviews done by us. His assistance in many interviews and stories was a real help. Happy to edit his independent stories also.

Special thanks to Viswajith Anand and Navaneeth Krishnan for sending questions for the interview even at very short notice.

Thanks to our Cochin Special Correspondent Joseph MD. His readiness to do a work at any time is note worthy. I never remember as heard a 'No' from him.

This blog would have been nothing without our Photo Editor Navya Frederick Pereira. She chose to stay with us in our good and bad days. This blog is what it is today because of your sincere efforts. From statistics reporting to news reporting to Photography, you spend a lot of time and effort.

Remember many who climbed on to this boat in the initial days, but left us alone at rough seas. Our works made us understand that if we are ready to work, then even a free blogging site can function like a law magazine.

Readers are our assets. Thanks for staying with us even when in this digital graphics age we still followed EPW model. Can never forget readers like Ramesh Rateria who criticizes citing para number, that really shows the attention with which he reads. Readers like Anisha Adithya, Adv. Rajesh Ramamoorthy, Adv. Boris Paul, Anil Puliyila, Sarah Georgey needs a special mention. Many other distinguished readers do not wish to be named owing to Professional and other reasons, so no naming individually. Bar, Bench and Academia supported us to the maximum. Thanks a lot. Readers, support and criticize to help us grow.

Best wishes to my dear friend and new Editor- Lesley Rajan. Keep going. Confident that you would convert this blog into a website in the future. One request- Don't put all rubbish posts and claim public interest. One advice- Do not go behind the volume of Audience traffic and ratings.


Enjoy your read.


Warm regards,
Nebil Nizar,
Content Coordinator (2012-13)

'Government has already provided a lot of subsidies and health packages for them. But due to the lack of responsibility and commitment, these plans are not implemented properly in Attapaddy'

Justice J.B Koshy
Photo: Navya Frederik Pereira

Justice Jacob Benjamin Koshy is the Chairman of Kerala Human Rights Commission. He is a former Chief Justice of Patna High Court and former Acting Chief Justice of Kerala High Court.

He obtained his undergraduate and post graduate degrees in Law from Government Law College, Ernakulam. 

Given below is the transcript of his interview with Lesley Rajan.

Qn: Sir, the number of harthals are increasing tremendously. Does it affect the whole people? According to the chief minister of Kerala, protest against a scam of 10 crore itself made a loss of more than 100 crores. How does human rights commission react to this problem, which affects a large population?

Ans : Human Rights Commission has passed an order against the  harthals as High court and Supreme Court  said that forced harthal is equivalent to  bandh . Government should compensate for the destruction for public and private property and should claim the money from those who has announced for the harthal ; the commission  has ordered . Harthals is mainly utilized by thugs and in spite prevailing public will.

Qn: Atrocities against children are increasing very widely. Sir, what all steps you have taken?

Ans: Certainly there are many laws against the atrocities towards children. In the case of Shafik from Kumily, the chief minister had directly taken action, when there is no action took from the part of government commission will interfere in that case. Main reason behind these child assaults are illicit liquor and alcohol. This will urge them to do these acts. Despite, we conduct many effective seminars and rehabilitation classes for the people against child abuses.   These rehabilitation programs and classes can decrease crime to an extent only, so the government officials should take action against these criminal acts. Laws only can’t control the crime rate, for example rape has been given even capital punishment, and also there are many laws but still yet rape occurs in many parts of the country in a high rate. Same in the case of murder, yet these crimes happens, a sad fact.

Qn: Recently we have seen many photos and videos are published in Medias against the accused persons. Here, are these publications amongst to defamation, since they are not convicted and if the court acquits them they lose the dignity in the society. This is a human rights violation, what you say about this?

Ans: Honourable Supreme Court and High Court ordered that Media Trials are unlawful. In this case Court has to decide, so I don’t want to comment.

Qn: Sir, you had said that, “Mullaperiyar issue is not a societal issue’’ Sir, Can you explain it?

Ans: Actually, it’s not what I said. For studying Mullaperiyar issue Supreme Court appointed an expert committee. I said people have to express their opinion about Mullaperyar issue was neither by picketing and hartals nor abusing Tamilians. It’s not the right way of doing. They should have given the evidence to the expert committee later, when the Supreme Court asks evidence they requested for time and Supreme Court did not allowed it, because the time has been over. Things should be done in the way they are meant to do.

QN: Recently P. K Jayalakshmi, minister of scheduled tribes, has recently said that alcoholism among the mothers was reason for new-born death in Attapaddy. As human rights chairman what’s your opinion?

Ans: Alcohol is one of the many reasons for such situation. I had visited Attapaddy and studied the conditions prevailing there. Government has already provided a lot of subsidies and health packages for them. But due to the lack of responsibility and commitment, these plans are not implemented properly in Attapaddy. The second reason is that the money among the women in Attapaddy. These women work very hard and earn money and it’s taken away by the men and given in Toddy shops. Illicit liquor is very common in Attapaddy. Married women are very affected by malnutrition. The rice available for subsidies to BPL families is resold in double price for buying Alcohol. These subsidies do not reach the family. According to the government scheme, the tribal people in Attapaddy have the right to get Medicines, Ambulance and other services. But the officers are irresponsible in providing these schemes. The main reason is the apartheid from the part of civil servants. Government has been spending more that Rs 10,000 per family in Attapaddy in every month. Alcoholism is worst habit and it destroys everything. There are woman who use Alcohol in Attapaddy. Another problem in Attapaddy is the child marriage. A woman of 16year old became pregnant 4 times. Child marriage is the foremost reason, why these minor mothers can’t bring up their children, and infant death increases. In these days sickle cell anaemia is very common there and National human rights commission has already taken case of this and we are not interfering in this.

QN: We heard “Retired Judges are always appointed as the head of the commission”. Sir what’s the truth about that?

Ans: Everyone has there own reasons. I have 27 years of experience as an advocate. After that I had been judge for a term of 13 years. I got training in this way that, when ruling party was Congress and when I wrote some judgments people said I am communist and when the left party ruled they said I am congress party supporter. So I don’t ear what people say and got trained to write a judgments impartially and unaffected by external forces. I have these skills and if I didn’t help government, and if I didn’t work as a judge it’s a huge loss to the government and the people. After I got retired I got pension 50% of the salary. I did not do anything for a term 6 months. In that time I got more income due to many people came for legal advice and arbitration. So I paid more income tax return. According to the protection of human right Act, 1993 the head of the human rights commission must be a retired chief justice. And in Kerala  he/she must be below 70 years of age. So then I was the only retired chief justice who knows Malayalam. There was no other option. Before the appointment I was working as the Appellate Tribunal of Money Laundering Act in Delhi. Then I got a request from Kerala, appointed as the Human Rights Commission Chairman. 90% of the orders are giving in Malayalam. The order must understand and convinced by the people. So, other state Judge cannot give judgment in Malayalam and there was no other option. So I accepted that request. If I did not accept it I would not get this much criticism from the Medias. If I worked as a legal adviser I would get more money still, I am doing this as a service.

QN:  As a retired Chief Justice, what do the reason behind the verdict of the Honorable Supreme Court about the disqualification of MP or MLA if they are convicted?

Ans: If a person is charged in a case they can also contest in election. The verdict says that the convicted people cannot contest in election. If a person is acquitted, he can contest in election. The prisoner who has been in prison more than 2 years, if that person filed an appeal, he/she can contest in election before the validity of the appeal expires. But the Supreme Court disagreed with that because when a prisoner files an appeal, the punishment is only stayed but conviction is there. The reason is that if a person has a criminal mentality and elected, when he rule he cannot control the crime, he also engages. In a country the security of people is the 1^st priority. So there would not be any problem with regarding the security concern of the people. For example if a person convicted for corruption, he is more likely to do that again. So if a corrupt person becomes a minister there is more probability for a corrupt ruling. I am not criticizing the verdict of the Supreme Court. What Supreme Court said is the law.

QN: What are the strategies of Human Rights Commission towards the society?

Ans: We must prevail Indian law when implementing that laws we will check whether there is human rights violation. If there is violation we will charge against them.

QN: Is there any compensation for the cases of human rights violation? Does the commission assure that parties get the compensation?

Ans: Government gives compensation. After I took the charge, most of the cases have been settled and had given compensation to the parties. Even in some cases we gave compensation directly to the parties. Others were given to the District Collector and ask the parties to collect compensation from the Collector. The complete compensation was given by the government. The government will take this money from the parties who violated the human rights.

QN:  Education bandhs are getting so common; here Right to Educate is getting violated by some student organization. As Human Rights Commission, what’s your opinion?

Ans: As I have already said that bandh and hartal violates the Fundamental Rights. Education bandh also a bandh. No one has the right to restrain others. I have the right not to go for classes, but nobody have the right to restrain me from education.

QN: Sir, what all changes you have made, when you took the charge of the commission?

Ans:. We conduct a lot of seminars with regard of human rights violation. We launch bulletin in every two months Before I took the charge, nobody didn’t know about Human Rights Commission. When I had taken the charge, the news regarding with human right commission is increased. So that our criticism also increased. When took the charge, there were almost 2002 uncleared files are there. Soon I finished that files. Nowadays almost 30 cases are charged daily. Some cases will not come in our jurisdiction, so we close that, others we will report and take action

'On the path of mediation'

By Lesley Rajan

Thiruvananthapuram: The High Court of Kerala Mediation and Conciliation Center produced Docu-fiction 'Anuranjanathinte Pathayil' (On the path of Mediation) will be telecasted in Dooradarshan Malayalam at 8pm on 28th of July 2013.

The Docu-fiction starring noted malayalam movie director Major Rajvi lasts for 45minutes and will deal with the process of mediation. This docu-fiction is written and directed by Guinness World Record Holder Adv. K.V Prakash from the Kerala High Court.  Adv. Simla Prabhakaran is the Assistant Director. Lyrics is by Adv. Salahudeen Kechery and Music is by Adv. Vipin Das T.K

This is the first time in the history; a shooting took place in the High Court of Kerala. It also has the distinction of being the first documentary to be produced by the High Court of Kerala.


lesleyrajan@gmail.com

Loudspeaker: Is Law the villain in rape cases?

Photo: Press Trust of India

By Nebil Nizar

Unfortunate rape and subsequent death of Delhi gang rape victim led to widespread protests whole over the country and in the digital space. Former Chief Justice of India J.S Verma was roped in along with Leila Seth and Gopal Subramanium, owing to public outcry, to recommend changes in the criminal law in the country. The Criminal Law Amendment Act was drafted, read, circulated, discussed and passed in record time. But one doubt, has anything changed since then?


Before and after Delhi incident Indian women continued to face the harsh realities of domestic violence, torture, rape, trafficking, bride burning etc. Rape gets on to the top of our chart because, as Hon’ble Justice Arijit Pasayat observed ‘While a murderer destroys the physical frame of the victim, a rapist degrades and defiles the soul of a helpless female’. The rape rate is not going down after all the attention and country wide protests. Recent case of abduction and rape of a medical student at Manipal again makes us sit and think- Can Law deter the commissioning of rape? Is Law the villain? What should be really done to stop this menace?


Let us see how our society responds to these critical questions

Joseph M.D, Student, Government Law College Ernakulam, says ‘Taking into consideration the latest spree f gang rapes across India, it is difficult to suggest that inadequacy of law is the only problem.  However I think laws existing today lack severity.’

Saumik Bose, Student, National Institute of Technology- Warangal, thinks ‘Law isn’t. The people who are responsible for implementing it are’

Nada Nashid, Student, Government Medical College- Thrissur, says ‘law is neither the villain nor the saviour, it just stays in between. The problem is with the society. Degraded morale is the basic issue. From my point of view law should ensure safety of women around and that’s a must. We can’t simply blame women for. In the present progressing world, one cannot stay indoors from dusk. A high standard of punishment by law can at the base put some stop to a few misfortunes.

Bilal Siddiqui, Student, University of Buffalo, New York says ‘I feel that our society is unable to keep up with the pace of social change. It’s simply happening too fast. While the upper middle class and the rich who live in major cities are able to adopt western ideas-way of living, dressing; the rest 70% of the 1.2 billion people who live in small cities, towns still nurture social conservatism and believe in the sanctity of inherited culture, traditions, and values. Given the current social climate, a woman should care more’

Adv. Boris Paul, Secretary, Kollam Bar Association, says ‘Law is not the snag. We have to reconcile with the reality that criminals thrive here and there and the Police and rulers are aiding crimes. Unless a fool proof crime stopper mechanism is established, we have to safeguard ourselves. As a part of safety, a girl can avoid late night strolling. That does not mean curtailing any of her right’.

Adv. Simla Prabhakaran from the High Court of Kerala says ‘Lack of law is not the key issue. We look after or discuss problems that are just hypothetical. What we should really converse is about human soul. Human mind must widen and attitude must change.  Then only this world will become a safe place for women.’

Adv. Rajesh Ramamoorthy from the High Court of Kerala also feels that there is nothing wrong with the law. He shared his thoughts thus,’ It (law) has been the same for a century and a quarter. In the past, people know each other enough that forcing oneself on a woman could have disastrous effects on the social and family life of the perpetrator by some mechanism in the society, whereas, today but for the legal consequences, the perpetrators are rarely ostracised in the society and family.’  

Dr. Mathew Kuzhalnadan, Supreme Court Lawyer and Indian Youth Congress National General Secretary say ‘Law alone is not the problem. However, strengthening of the same and fixing the loop holes and speedy trial will definitely improve the situation’

Lt. Sanil Kumar says ‘Our system of education has many flaws and an immediate reform to upgrade the same is inevitable. Education must inculcate values in the young minds. A person with ethics and values seldom insult women’. He thinks of a carrot and stick policy. He adds ‘I also think that we need to introduce a witness protection system in India. A witness should not be threatened. A witness should feel that he is a ‘Hero’. This system ensures that no one escapes the hands of law and thereby deters others’.

Prasanth Nair IAS, MD of KTDC and Addl. Excise Commissioner of Kerala say ‘It (rape) has been happening even before Delhi incident. It is continuing to happen in cities and villages. Murder, assault, rape, burglary etc happen despite laws. No law has stopped any crime completely. Surveillance, enforcement, civil society involvement and sensitisation of men are important.’

Justice V.R Krishna Iyer, Former Supreme Court of India, say, 'Law is not the villain. On the contrary it is a fundamental requirement for social survival. Violence on women and its frequency depends on the penalogical instrumentality and speedy radical operation.'

Rape is the most heinous crime committed on a woman. It is worse than a murder, as the victim dies 1000 times, when she is alive. A carrot and stick policy is the need to tackle this. Blaming the law won’t terminate this problem. At one side we need to develop a society of value rich souls who believes in ethics. Sensitisation of men is inevitable. Other side, we need to have surveillance, enforcement and punishment. A witness protection system is also a good thought.

myidnebil@gmail.com

Editorial

Photo: www.guardian.co.uk 

Law is an outstanding innovation of human rationale for it always inspires and guides men in their deliberate efforts of development.  It is inextricably related to human society reflecting its mobility and greatness at every stage of human progress.

Sovereignty and liberty are the invaluable gifts that law has given to civilized man. This instilled both admiration and fear in them. Law as a multidimensional concept emerged from natural law and natural justice; traversing criminal and civil systems it entered the realms of moral law. Natural law enables him to observe nature from a scientific point of view while the criminal and civil dimension makes him better equipped for constructing modern society. And moral law provides him a well cultured human society. It is a truism that the harmonious blend of these three dimensions of law is a prerequisite for the holistic development of the human community.

At the same time, certain restrictions are inevitable in order to achieve such a human community. First and foremost, man needs to be controlled by rules and regulations. But this is still a castle in the air. It is an indisputable fact that the fear of police and public opinion rather than self-control and truthfulness breeds morality.  But the existence and influence of law can facilitate such an environment of prosperity and development in human communities. Secondly, man must have the courage and the mind set to willingly accept the recognition of his own conscience rather than passive submission to mere rules and regulations. The moment he discerns these noble legal views man becomes a morally and legally refined personality.

Human beings are the highest products of social evolution. Men follow the laws that they themselves formulate. Law students are the budding interpreters and practitioners of law. Interpretation of law is not a mere technical task but a social duty and advocates are doing social service. This raises two fundamental questions:  who is the right person to interpret the law? Is it legal interpretation or legal practice that strengthens an advocate? The idea of mere legal interpreter or legal practitioner evokes nothing but a vacuum. It can be equated with the plight of a person who is insensitive to the lives around him. When the traditional values face challenges and are substituted with modern values, mechanical interpretation of law becomes a failure as social service.

For the perfection of such a society drastic changes should be made in the minds of those who practice and interpret law. They must be content with their self- recognition rather with external acceptance. They must be loyal to laws and also exercise self- control. Those people who obtain a degree in law must internalize the essence of law instead of just accumulating legal knowledge. Those people who cannot attain this mentality are harmful to society even if they are law makers, law interpreters or law practitioners. Undoubtedly, the lack of such a frame of mind is the curse of modern society. 

(Dr. P.G Balachandran Pillai is a Professor at Government Law College and also acts as the Editorial Advisory Board Chairman)

Brief remembrance about one of the rarest of the rare Judges of excellence

Justice. J.S Verma

By Justice V.R krishna Iyer

Jagdish Sharan Verma was one of the greatest Chief Justices of India.  He was more than a judge and will be remembered for a hundred great things in which he was involved.  He comes from Madhya Pradesh as a distinguished lawyer was elevated as Chief Justice of Madhya Pradesh and also of the Rajasthan High Court.  He was responsible for the judicial promotion of a collegium which in my view was an institution of doubtful value.  I like him most not for his collegium judgments but for making a historic and creative contribution on enunciating principles of judicial good behaviour.  Whenever judicial good behaviour was under question the values formulated by J.S. Verma were the hallmark authoritatively ever lay down.  He stood for judicial accountability and headed many Commissions on divergent aspects of judicial conduct and public life.  Beyond his judicial career Justice J.S. Verma’s reports on other dimensions of enquiry where he was chosen to be Chairman makes this great judge one of the finest members of the Indian judiciary.  I have had occasion to meet him quite often and admired him for his integrity fearless and frank opinions and for above all for formulation of what good judicial behaviour should be.  In my humble view Justice Verma excelled most judges who sat on the Supreme Court in being a model judge ever ready to serve public causes whenever required by the Republic of India.  Great J.S. Verma, I salute you though posthumously for your sublime achievements throughout your marvellous career on the Supreme Court Bench.


(V.R krishna Iyer, eminent jurist, is a former Judge of the Supreme Court of India)

Same Sex Marriages- An unnatural bizarre operation.

Photo: www.guardian.co.uk

By V.R Krishna Iyer               

 Man weds woman in response to the sex urge.  This dual sex operation is inevitable if creation into communities and the formation of societies is nature’s objective.  Man is never single but a collective.  This process is rendered possible by Nature creating sex and the operation of male and female sexes.  They unite through appropriating male and female organs and this is matrimony.  The female womb contains the female egg which is fertilized by the male semen.    This fertilization in the womb gives birth to life—a mystery of Nature and grows into a full human being and gives birth to a living being.  This is the natural method of reproduction by the two sexes and makes this operation for a population, from insects, animals, birds and humans organized and developed into society.  The male sex and its opposite the female are conditions absolutely necessary to successful reproduction.  The same sex cannot produce a new being.  So is the biological mission and chemistry of creation.  Nature has invented the sex appeal a powerful appetite and attraction.  Sans sex there is no craze for union, no womb with egg, no semen, no fertilization, no babe, no birth, no parents, no community and no society.  In the absence of these social processes there cannot be social progress.  If humanity is to rise above animal existence and establish a civilization we require rival sexes, rival communities and finally the realization of the spiritual inner man.  The forces of progress have organized the system of marriage so that orderly development may be possible as against sexual violence.  Since 2000, several countries and some other jurisdictions have legalized the same-sex marriage.  It is unnatural though.  Cohabitation is the order of nature although in early Rome same sex-marriages did exist as a scarce exception.

               

In modern cultures same sex marriages are a rarity and the law frowns on that practice.  Two opposite sexes are the rule and deeply rooted in the psychological instinct of humanity and sub-human species.  The same sex is unnatural and hardly merits civilized debate or discuss.  The dual sex of male and female without which reproduction is not possible is the biological methodology of creation of communities and cultures.  A social study of matrimony as spelt out in the website gives us a picture of civilized society.

People marry for many reasons, including: legal, social, libidinal, emotional, financial, spiritual, and religious. Marriages can be performed in a secular civil ceremony or in a religious setting. The act of marriage usually creates normative or legal obligations between the individuals involved. Some cultures allow the dissolution of marriage through divorce or annulment. Polygamous marriages may also occur in spite of national laws.

Marriage can be recognized by a state, an organization, a religious authority, a tribal group, a local community or peers. It is often viewed as a contract. Civil marriage is the legal concept of marriage as a governmental institution irrespective of religious affiliation, in accordance with marriage laws of the jurisdiction.

(V.R Krishna Iyer, eminent jurist, is a former Judge of the Supreme Court of India)

Newsletter. March 2013

'Italy cannot claim sovereign immunity'

Massimiliano Latorre, center and Salvatore Girone, right,
coming out of Central Prison, Thiruvananthapuram, Kerala, India.
Photo: Associated Press

The Killing of two Indian Fishermen off Kerala Coast has even led to a legal-diplomatic war between Republic of India and Republic of Italy. Both the countries contents jurisdiction to try this case. This case climbed the stairs of Supreme Court at least four times. The ‘Note Verbale’ by Italian Government and subsequent Supreme Court order restraining Italian Ambassador from leaving out of India and possibility of contempt proceedings again led to Diplomatic war between both countries.

Special Public Prosecutor for Enrica Lexi Case at Kollam Sessions Court, Shri. G Mohan Raj exclusively spoke to Nebil Nizar. Given below is the excerpt from the conversation.

Adv. G Mohan Raj

1- The Supreme Court has ruled that India has jurisdiction in this case, but not Kerala. How do you react?

 Mohan Raj: I think even Kerala Courts has jurisdiction. As long as Indian Constitution, Indian Penal Code, Criminal Procedure Code extends to the state of Kerala, and jurisdiction of India is extended using Maritime Zones act, Kerala is having jurisdiction.
The Hon’ble Supreme Court has ruled that Kerala is having jurisdiction up to 12 nautical miles and India is having Jurisdiction up to 200 nautical miles. As for the time being, that is the Law of the land.

2- The Complainant in this case was Kerala Police. Now you have been stripped of your rights. What can you do?

Mohan Raj: Criminal offence is an offence against the state. In Larger perspective we can say that state can be nation itself. When Jurisdiction of Kerala state is taken away, Jurisdiction will go back to Central Government. For the reason that Kerala Police initially registered the case and thereafter it was found that Kerala is having no jurisdiction, the initiation of criminal proceedings will not abate.

3- Supreme Court said that Registration of FIR is correct, Investigation is correct, but, you do not have Jurisdiction. Don’t you feel this is strange?

Mohan Raj: That is the anomaly. When it is said by the Apex Court, we have no option other than to follow it.

4- How did you begin this case?

Mohan Raj: First, we searched for Notification under The Territorial Waters, Continental Shelf, Exclusive Economic Zone and other Maritime Zones Act, 1976 (the Maritime Zones Act, for short). Fortunately we could find a 1981 Notification by Central Government. In the notification it was said that Indian Penal Code was extended up to 200 nautical miles. Then we were sure that we had Jurisdiction to investigate this case.

As far as criminal law is concerned, if nothing prohibits the initiation of proceedings, then it can be. As on the date of registration of FIR, there was nothing prohibiting Kerala Police from conducting an Investigation. So, Federal state initiated action. FIR was registered, seizure was made.

5- The Accused(s) in this case are members of armed forces of a sovereign country in friendly relations with India. Are they entitled to Sovereign Immunity?

Mohan Raj: For getting the benefit of sovereign immunity, you should be exercising a sovereign function. Here, in this case, Investigating Officer could rightly find out that they were engaged for giving private security to a private ship. Italian Military was getting paid for that.  It was a paid service. Sovereign Immunity can be claimed only when the Marines acted for Italian Government. The Marines did not fire for the safety of Italy.

6- There is a Prisoner Exchange Agreement between India and Italy. Are you afraid that the Marines would shrug off the clutches of Indian Law?

Mohan Raj: That is by virtue of The Repatriation of Prisoners Act, 2003. Recently India and Italy has signed an agreement. They might be foreseeing a conviction. If they are convicted, they might ask Union Government to repatriate them to Italy.

7- Media reports quote Italian authorities saying that India has agreed in writing that the accused (s) will not be given Capital punishment. How do you react to this?

Mohan Raj: It is premature to comment about that. We cannot say the outcome of the trial. First of all they must be found guilty. Then mitigation circumstances have to be considered. Then we have to consider whether it is a rarest of the rare case. Then only that issue arises.


*
Special thanks to Shri. Reju Prasad and Smt. Garima Tiwari

Law or India?

By Justice V.R Krishna Iyer

India was the greatest colony of the British Empire.  Indian culture was one of the most glorious ever as pointed out by Max Muller.  But this glory notwithstanding India suffered slavery under the British Empire.  A.O. Hume a Britisher was humiliated by this servitude of India and he was among the foremost who instigated India’s right for its freedom.  There were other great Indians like Bala Gangadhar Tilak who joined him.  The Indian freedom movement gained mass support even in England. Indian freedom became a powerful movement.  Annie Besant a great orator was a leader of the Satyagraha movement in India.  So powerful was this great movement that the House of Commons granted Indian independence by legislation.  On the 15^th of August 1947 India declared its freedom in a historic speech by Jawaharlal Nehru who was the President of the National Congress.  That speech not very long was a rare performance which I reproduce here:

Long years ago, we made a tryst with destiny, and now the time comes when we shall redeem our pledge, not wholly or in full measure, but very substantially. At the stroke of the midnight hour, when the world sleeps, India will awake to life and freedom. A moment comes, which comes but rarely in history, when we step out from the old to the new, when an age ends, and when the soul of a nation, long suppressed, finds utterance. It is fitting that at this solemn moment we take the pledge of dedication to the service of India and her people and to the still larger cause of humanity.

At the dawn of history India started on her unending quest, and trackless centuries are filled with her striving and the grandeur of her successes, and her failures. Through good and ill fortune alike she has never lost sight of that quest or forgotten the ideals which gave her strength. We end today a period of ill fortune and India discovers herself again. The achievement we celebrate today is but a step, an opening of opportunity, to the greater triumphs and achievements that await us. Are we brave enough and wise enough to grasp this opportunity and accept the challenge of the future?

Freedom and power bring responsibility. The responsibility rests upon this Assembly, a sovereign body representing the sovereign people of India. Before the birth of freedom, we have endured all the pains of labour and our hearts are heavy with the memory of this sorrow. Some of those pains continue even now. Nevertheless, the past is over and it is the future that beckons to us now. That future is not one of ease or resting but of incessant striving so that we might fulfill the pledges we have so often taken and the One we shall take today. The service of lndia means the service of the millions who suffer. It means the ending of poverty and ignorance and disease and inequality of opportunity. The ambition of the greatest man of our generation has been to wipe every tear from every eye. That may be beyond us but as long as there are tears and suffering, so long our work will not be over.

And so we have to labour and to work and work hard to give reality to our dreams. Those dreams are for India, but they are also for the world, for all the nations and peoples are too closely knit together today for anyone of them to imagine that it can live apart. Peace has been said to be indivisible; so is freedom, so is prosperity now, and so also is disaster in this one world that can no longer be split into isolated fragments. To the people of India, whose representatives we are, we appeal to join us' with faith and confidence in this great adventure. This is no time for petty and destructive criticism, no time for ill-will or blaming others. We have to build the noble mansion of free India where all her children may dwell.

Till then India was a creature of British law and Indian freedom was a part of British jurisprudence.  Indian law was governed by British power who ruled our country through a Viceroy.  Law India had to be eliminated. But from the 15^th of August 1947 when the declaration of Indian independence was made, India was a pre-Republic whose fate was decided by a Constituent Assembly.  This Assembly made India a Socialist, Democratic Republic.  Its entire governance was controlled by an original constitution framed by its own Constituent Assembly.  Its Constitution was the longest and noblest and gave to the people of India a Preamble one of the best in the world.  This Preamble was a proud paramount deed.  This Constitution made Bharat one of the most powerful nations of the Common Wealth.  It had a powerful defense as was demonstrated in World War-I and later in the greatest war the world has seen in the World War-II.

The great issue before the nation was independence or Indian nationality.  In short, the people of India who gave to themselves a Constitution of its own wanted the rule of law govern a great democracy.  Not merely law they also wanted independence.  In short, We, the People of India decided to have the rule of law rather the Socialist Democratic Republic of India and no longer any trace of imperialism but swaraj as contemplated by the resolution passed by the National Congress during its struggle for freedom.

There were feudal cultures in India with over 600 princes governing various territories of their own. While so foreigners came into India.  The Portuguese Vasco De Gama came to Calicut and established the first piece of foreign territory and with this began foreign rule in India.  Gradually other foreign western countries landed in India and made us subordinate to western forces.  Eventually the British dominated India and made this great country its colony.  As started earlier the world faced two world wars and at the end of which a new world emerged.  The UNO came into existence with human rights as a great factor in civilization. The American forces which were after the British waged a civil war which begin with Boston Tea Party and ended with the American Declaration of Independence making Washington the most powerful Nation in the world.  Thus the new world was governed by American Republic, the largest ever world has seen. In this new world India had a great place.  From feudalism the world saw agriculture which in turn was overcome by industrial civilization.  Today the world is largely industrial although India continues to be agricultural.  India lives in its villages largely agricultural. But industrial civilization has taken over with the result the great Mahatma the Father of the Nation made India essentially non industrial. The soul of India is even  today agricultural and the people lives in villages.  Such is our nation but it stand by the rule of law and democracy.  Each adult citizen having franchise today.  India is a democracy and a socialist secular democratic Republic.  What we have gained is the rule of law. No longer under princess but under the people. Bharat is now a people’s democracy.

This grand Republic in this excellence is best understood by its noble Preamble which runs thus:

WE, THE PEOPLE OF INDIA, having solemnly resolved to constitute India into a SOVEREIGN SOCIALIST SECULAR DEMOCRATIC REPUBLIC and to secure to all its citizens:

JUSTICE, social, economic and political;

LIBERTY, of thought, expression, belief, faith and worship;

EQUALITY of status and of opportunity;

and to promote among them all

FRATERNITY assuring the dignity of the individual and the unity and integrity of the Nation.

This grand Preamble sums up the essentials of the anatomy of our Constitution.  In essence it is socialist which means that the imperial capitalist rule of law must quit and the common man not the wealthier class will have the governance of the nation.  The conscience of the Constitution lies in Part III and IV.  The great human rights enshrined in Part-III are perhaps the glory of our Constitution.  The Directive Principles of State policy imparts a public dimension to the values of the Constitution.  That is why under our Constitution Public Interest Litigation played so key a role that whenever there is a violation either by the executive or by the legislature of the public values of Part-III and IV it is open to any citizen to move the higher courts and seek a writ to defend his rights and the ruling of the High Court is a great protection of the citizens under Article 141 and 32 of the Constitution.  As we read through the entire Constitution what looms large is the anxiety of the framers to use the Constitution for the weaker sections of the Indian community.  It is not merely a materialist document but gives importance to spiritual and moral value as well.  Article 47 is all against alcoholism and for the have-nots.  This is the quintessence of socialism nor is our Constitution against spiritual value.  Secularism as declared in the Constitution secularism, creedal freedom, integrity, fraternity and equality of faith.  Even linguistically people have freedom of language and cultural development.  In short, a multi-dimensional progressiveness is stridently writ large in the various schedules of the Constitution.  But above all, national unity is paramount and legality is equally important.  We have the best Constitution but it works well and makes the country unite so long as the operators of the paramount deed work it well.  The Constitution is how it operates vis a vis the little Indian as he exercises his vote freely and in fulfilment of the Preamble.   Justice above all is the prominent feature of our LAW.  International peace and comity is a prominent feature of our paramount deed.

The will of the majority of the people of India decides who wheels the sovereign power.  The people in their majority articulate their voice through the General Elections periodically held where every little Indian through his little mark makes his will speak on paper which our final court tells the world who will command the sovereign power of India that is Bharat. ’the little man, walking into a little booth, with a little pencil, making a little cross on a little bit of paper—no amount of rhetoric or voluminous discussion can possibly diminish the overwhelming importance of the point.‘  

India finds its finest expression of humanity and divinity blended in a humane unity not through the wonder of verbalism but through the determination of its people through a periodic General Election not through the wealth of party or of any personality or family but through the numbers of adult Indians in a free and fair election independently held with the ultimate validity ruled by the Supreme Court which enjoys sovereign power under the Constitution.

As earlier elaborated the twin paramount commitments of the Constitution Indian humanity are (A) Law India by which I mean the country is committed to the rule of law as finally upheld by the Supreme Court of India and (B) Its non-negotiable subordination to swaraj as accepted by the nation as a whole and never belonging to a family or personality.  The rule of law is controlled by an absolutely independent judiciary supported by a Bar utterly subject to integrity.  A humane justice and a Bar which surrenders to have except the rule of law the best description of this concept is given by Justice Felix Frankfurter thus:

No one can be a truly competent lawyer unless he is a cultivated man.  If I were you, I would forget all about any technical preparation for the law.  The best way to prepare for the law is come to the study of the law as a well-read person.  Thus alone can one acquire the capacity to use the English language on paper and in speech and with the habits of clear thinking which only a truly liberal education can give.  No less important for a lawyer is the cultivation of the imaginative faculties by reading poetry, seeing great paintings, in the original or in easily available reproductions, and listening to great music.  Stock your mind with a deposit of much good reading, and widen and deepen your feelings by experiencing vicariously as much as possible the wonderful mysteries of the universe, and forget all about your future career.