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Video Recordings to end the Opacity in the Courts

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      It is an oft-repeated saying that ‘sunlight is the best disinfectant’. There is no denying that transparency in every sphere of life works like auto-cleaner while the opacity breeds suspicion and corruption. It is, therefore, indeed laudable that the Supreme Court has taken up the cause of transparency in the right earnest by directing the audio-video recording of the court proceedings across the country.  The benefits of  video recordings will far outweigh the disadvantages and bring order and solemnity to the proceedings.  It has been a long-standing demand of the people throughout the country that the proceedings of the court should be recorded to ensure good conduct of the advocates and the judges.          It may be mentioned that the Chief Justice of India and the Prime minister have already spoken about the setting up of e-courts in the country as a method of reducing pending litigation and introducing ...
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Privacy Cannot Override National Interests

A big debate is going on throughout the country with regard to linking of Adhaar Card with the bank accounts, mobile numbers and many other necessary services. There is a section of the society, which vehemently opposes it because it will violate the privacy of a citizen. The recent Supreme Court judgement in ‘K.S. Puttaswamy and anr vs the Union of India’ has made it abundantly clear that privacy is an inviolable right as it allows each human being to be left alone without being disturbed by the state. However, the autonomy of the individual is conditioned by the relationships with the rest of the society. Therefore, a right balance has to be struck between autonomy and free choice. There is another section of the society which has equally very strong and convincing argument in favour of linking of Adhaar with all other services for bringing about transparency in all walks of life, which is so imperative for rooting out the corruption and maintaining law and order. They say ...
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Murder of Arushi Remains an Enigmatic Mystery There are some criminal cases, which remain deeply etched in the public memory for a long time to come. These cases evoke enormous interest and shake the conscience of public. People feel fear, horror, brutality, mechanism, conspiracy and execution associated with such criminal cases. In criminal law two components are necessary to prove the guilt of an accused person. One is mens rea i.e. intention behind the crime and the other is actus reus i.e. execution of the crime. This must be proved in the court of law by the evidence which may be circumstantial or based on the last scene theory or supported by the statements of indubitable eyewitnesses. In all such evidences the link must be made complete. However, if there is any doubt in completing the missing link then the benefit of it always goes to the accused because the criminal law follows the principle that even if hundred criminal go scot free but an innocent person should not be punished. There are many cases criminal cases which have been perpetuated in the public memory by the media coverage. For example, the Nanavati case of Bombay (it was not a Mumbai then), which shook the entire nation. A decorated Naval Officer Nanavati had murdered a businessman Prem Ahuja, who was in illicit relationship with his wife Sylvia. Many films have been made and books have been written on this sensational murder case. Another horrendous case of rape and murder recent times was that of a young para-medical girl, Nirbhya, in the year 2012. That generated a tsunami of anger throughout the country and the Government was forced to enact laws ensuring the safety and security of women and also quick disposal of such cases to meet the ends of justice to some extent. In the same category falls the murder mystery of Arushi, a 14-year-old teenager of NOIDA. Her parents, Rajesh Talwar and Nupur Talwar are Dentists. It attracted the attention of the whole country because of the wide and sustained media coverage. Apart from Rajesh and Nupur Talwar, their servant Hemraj was also living in the flat. On the fateful day of 15 May, the family had dined together. After some time Aarushi went to sleep. On the morning of the 16th May 2008, Bharti Mandal, a maid servant rang the doorbell but when no one responded from inside she went up the staircase leading to the terrace of the flat to fetch the bucket and mop kept there. While coming down she found that no one had opened the door, she put her hand on the outer grill door, but it did not open, then she again pressed the doorbell on which Dr. Nupur Talwar opened the innermost wooden door and started talking to her. She asked Bharti Mandal where had Hemraj gone, to which she expressed her ignorance. Dr. Nupur Talwar then told her that Hemraj must have gone to fetch milk from mother dairy after locking the inner iron mesh door from outside and she told her to wait till Hemraj returned. Thereupon Bharti Mandal asked Dr. Nupur Talwar to give her key so that she may enter the house after unlocking the inner iron mesh door on which Dr. Nupur Talwar told her to go to the ground level and she would throw the key to her from the balcony. While Bharati Mandal was going down Dr. Nupur Talwar picked up a cordless phone and dialled Hemraj's mobile no. The call got connected but got disconnected after a couple of seconds. When Bharti Mandal came down Dr. Nupur Talwar told her that the door was not locked but only latched from outside. Thereafter Bharti Mandal climbed up the staircase and when she put her hand on the outermost iron grill door it opened and thereafter she unlatched the middle iron mesh door and stood there. She heard Dr. Rajesh Talwar and Dr. Nupur Talwar weeping on which she suspected that some thief had broken into the house. When Bharti Mandal inquired from her why she was weeping, Dr. Nupur Talwar asked her to come inside and see what had happened. Then Bharti Mandal came with Dr. Nupur Talwar inside the flat and stood outside Aarushi's room Dr. Nupur Talwar pulled the bed sheet with which her daughter was covered on which she saw that her throat was slit. She became frightened. Dr. Nupur Talwar told her to see what Hemraj had done. It appears till that time no one was aware that Hemraj was also lying dead on the terrace. Within hours of the discovery of Aarushi's body, the flat was swarming with people, the policemen, the press, family friends, curious strangers descended on the Talwar's home. The Police was informed, which arrived at the scene of incident and started investigation. Arushi was found dead in her bed with signs of sharp edged weapons on her neck. The needle of suspicion revolved around Hemraj, who after committing the murder of their daughter was missing but when his body also found, then the mystery got further deepen. The Allhabad High Court found the chain of circumstances to be grossly incomplete and broken and said that ‘the circumstances of the case do not lead to the irresistible conclusion that the appellants alone are the perpetrators of crime in question and on the evidence adduced in this case certainly two views are possible; one pointing to the guilt of the appellants; and the other to their innocence and in view of the principles expounded by the Apex Court ,we propose to adopt the view which is favourable to the appellants.’ We hold that the prosecution has failed to prove its case against the accused beyond all reasonable doubts.’ Therefore, they stand acquitted. The scathing attack of trial judge by the High Court is certainly quite a new trend in the judgement and beyond any justification. In its diatribe against the trial judge, the High Court has said that ‘the learned trial Judge has prejudged things in his own fashion, drawn conclusion by embarking on erroneous analogy conjecturing to the brim on apparent facts telling a different story propelled by vitriolic reasoning. Thus, basing the finding of conviction without caring to see that it being a case based on circumstantial evidence things cannot be presumed and stuffed in a manner like the present one by adhering to self-created postulates then to roam inside the circle with all fanciful whim. The learned trial Judge took evidence and the circumstances of the case for granted and tried to solve it like a mathematical puzzle when one solves a given question and then takes something for granted in order to solve that puzzle and question. But the point is that the learned trial Judge cannot act like a maths teacher who is solving a mathematical question by analogy after taking certain figure for granted. The learned trial Judge has aberrated and by dint of fallacious analogy and reasoning has surprisingly assumed fictional animation of the incident as to what actually took place inside and outside the Flat, and like a film Director, he has tried to thrust coherence amongst facts inalienably scattered here and there.’ Certainly, such recalcitrant mindset in interpreting facts vis-a-vis circumstances of the case and evaluation of evidence ought to have been shunned. Consideration of merit should be based only on evidence and circumstances apparent on record, crystallizing the truth in substance and alluding to certainty of decision, backed up by reasonable analogy and scrutiny by the trial Judge as that alone would always be the best approach while deciding a criminal trial, said the High Court. However, the million-dollar question remains that who killed Arushi? Will this enigma be ever solved?

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How Can a Feeble ‘No’ of the Woman be Her Consent?

Two recent judgements of Delhi and Punjab & Haryana High Courts resulting in the acquittal of accused persons, convicted by lower courts in rape cases, have created aflutter across the country. While the Delhi High Court has acquitted a high-profile filmmaker Mahmood Farooqui, who came into limelight for his film ‘Peepli Live’, which was themed on sensationalism in journalism. He was convicted by a lower Court of Delhi for raping a 26-year-old American researcher on the night of 28 th  March 2015. The logic for the acquittal of the accused filmmaker is highly unsettling because it has said that a ‘feeble no’ from the victim could a consensual one. The Punjab and Haryana High Court has even gone to the extent of shaming the victim by saying that she happens to be of ‘promiscuous character’. The Delhi High Court says, ‘instances of woman behaviour are not unknown that a feeble ‘no’ may mean a ‘yes’. If the parties are strangers, the same theory may not be applied, if the ...
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Talaq-e-biddat Goes but Dehumanising Halala Remains

Talaq-e-biddat Goes but Dehumanising Halala Remains The obnoxious practice of triple Talaq, which has spoiled the lives of thousands of Muslim women across the country has now been outlawed by the Supreme Court of India. Muslim men have been divorcing women with gay abandon by saying talaq three times in one go, sometimes under the influence of Alcohol and sometimes in anger and many times for trivial reasons. It is surprising that triple Talaq has been continuing in a secular country like India while dozens of Muslim countries have already banned it. Therefore, banning of triple Talaq or  Talaq-e-biddat  through Supreme Court judgment in  ‘Shayara Bano vs Union of India and others’  has come as a huge relief to millions of Muslim women. Although marriage is a contract under Islamic law yet the right to divorce is available only to men. There are three types of Talaq:  Talaq-e-ahsan ,  Talaq-e- hasan  and  Talaq-e-biddat . ‘Khula’ is a...
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