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Who Polices The Police?: A Practical Assessment Of Illegal Arrests And Custodial Deaths

Innocent until proven guilty1is considered to be the golden thread connecting the burden of proof and the presumption of innocence in criminal law. This term was coined by Sir William Garrow, a British barrister known for fighting justice. In a democratic society like India, an individual’s basic/fundamental rights that are ought to be considered sacrosanct are, at times, treated as inconsequential. This article aims to carve out the rights of an accused at the time of arrest, search & seizure, and trial. 

By: Abhinav Sharma and Kunal Srivastava

RIGHT TO BE INFORMED AND PROTECTION AGAINST ILLEGAL ARREST

Any individual being arrested, has the right to know the grounds of such arrest2 and where the offence is bailable, the right to be released on bail. These rights are to be informed to the accused by the police officer making the arrest.3

The right to be informed has been conferred the status of a fundamental right under Article 22 of the Constitution of India.4 Which further provides the right to consult, and to be defended, by a legal practitioner of his/her choice and the right to be produced before the nearest magistrate within 24 hours of the arrest.

If the arrest is being made under a warrant, the accused has the right to be notified of the substance of the warrant.5 and the right to have a relative or a friend named by him/her to be informed of the arrest. The accused also has the right to meet an advocate of his choice and have him/her present even during interrogation.6

RIGHT TO REMAIN SILENT

The right to remain silent is a crucial right of the accused that emanates from the fundamental right of protection against self-incrimination provided under the Indian Constitution under Article 20(3) which protects an accused from being compelled to be a witness against himself. This right is based on the cardinal principle of criminal law “innocent until proven guilty”, and is also recognised as the right to remain silent under Section 313(3) of the Code of Criminal Procedure7 which states that “The accused shall not render himself liable to punishment by refusing to answer such questions, or by giving false answer to them”.

However, if the accused decides to remain silent, in such event, the Court would be entitled to draw an inference including “adverse inference” against the accused as may be permissible in accordance with the law.8

The Court can also convict an accused if he/she fails to provide an explanation for the facts and circumstances pointing against him/her.9

Hence, the right to remain silent may lead to adverse inference as seen in various judicial pronouncements.10 The accused shall be very careful while recording his/her statement before any magistrate. 

RIGHT AGAINST ILLEGAL DETENTION AND FAIR TRIAL 

An arrested individual has the right to be produced before the nearest magistrate, who may further extent his custody for a term not exceeding 15 days which may be further extended.11

If any arrestee is detained in police lock ups beyond 24 hours without being produced before the magistrate and as per the procedure laid in law, such detention would be illegal.12

After being arrested, the accused has the right to a fair trial13 before an independent, impartial and competent judicial authority. So far as the rights concerned during the investigation stage are concerned, Article 21 of the Constitution of India is relevant. Article 21 states that “No person shall be deprived of his life or personal liberty except according to procedure established under law”. Indian courts have interpreted this in a catena of judgments that provide valuable instructions to judicial officers on how to protect the rights of an accused in order to assure a fair trial. Judicial officers are expected to follow every procedural safeguard and protect every assurance provided by the law to all parties. 

There are various procedural safeguards that protect an accused from illegal arrest and detention, like prohibiting an investigating officer from obtaining statements from witnesses through threatening conduct14, duty of the police officer making the arrest to inform about the arrest to any person nominated by the arrested person.

It is mandatory for the police officer to prepare an “Arrest Memo” indicating the date, place and time of arrest which has to be signed by two independent witnesses and countersigned by the officer making the arrest.15 It is mandatory to conduct a medical examination of the accused at the time of arrest and any kind of torture on the accused is absolutely forbidden inasmuch as torture is a violation of the fundamental rights.16

FROM TRIAL TO THE FINAL JUDGMENT

Trial of any accused has to be according to the procedure laid down by the law and the principles of the criminal judicial system. The basic principle is that the accused is presumed innocent until proven guilty beyond a reasonable doubt. 

“Beyond reasonable doubt” casts a significant obligation on the Investigating Authorities as it makes clear that probability, no matter how great, is not sufficient to convict an accused if another hypothesis consistent with the innocence of the accused is plausible.

Recently in the case where the founder editor-in-chief of Tehelka was acquitted of all charges of sexual assault and rape of a junior colleague by the District and Sessions Court at Mapusa, Goa due to lack of evidence which prima facie highlights the shortcoming on the part of the police. The judgement of acquittal, however, has been challenged before the Bombay High Court and is currently pending adjudication. Without considering the merits of the actual case, what can be said is that the lack of evidence was sufficient in itself to make the requirement of “beyond reasonable doubt” insurmountable.

PREDOMINANT ISSUES IN INDIA – Custodial violence and death.

Custodial violence refers to any kind of an act of violence on an arrested individual who is in police custody. Custodial torture is universally held as one of the cruellest forms of human rights abuse. While this evil has been forbidden by the Constitution of India, the Supreme Court, the National Human Rights Commission (NHRC) and the United Nations, it is unfortunate that, to this date, we come across chilling stories of custodial violence in India. There is an urgent need to strike a balance between the individual human rights and societal interests in combating crime by using a realistic approach.17

Between 2001 and 2018, a total of 1,727 people died in police custody. However, during this period, as a stark contrast, only 26 officers have been convicted, most of whom are out on bail.18 There are precedents19 and various provisions under the law to highlight the vicarious liability of the state in cases of custodial violence. However, the ground realities illustrate that the prevailing laws are far from truly embracing the tenets of due process.

A precaution against the possibility of torture in police custody is instilled under various statutes like the Evidence Act through provisions like Sections 24,25 and 26 – where even a confession made to a police officer in inadmissible in court of law.

Indian Precedents on Custodial Violence and Deaths 

A division bench consisting of Hon’ble Mr. Justice P.N. Prakash and Hon’ble Mr. Justice B.Pugalendhi took a Suo Motu cognizance20 on custodial torture and death of a father and son who were arrested from their shop in a town in Tuticorni district for keeping the shop open past the permitted hours and were brutally assaulted leading to their death. The investigation was taken up by the CBI, who informed the Court that the victims (father-son duo) were tortured for more than 7 hours. A chargesheet has been submitted by the CBI against nine police officers in connection with the custodial death of the victims. This incident of the gruesome torture meted out by the police occurred as recently as last year, points to the urgent need for the State to take more responsibility to ensure that the ban on torture is upheld in letter as well as in spirit. 

The Supreme Court in D.K Basu v. State of West Bengal21 States that “Custodial deaths is one of the worst crimes in a civilized society governed by the Rules of Law. Does a citizen shed off his fundamental right to life, the moment a policeman arrests him? Can the right to life of a citizen be put in abeyance on his arrest? The answer, indeed, has to be an emphatic No”.

This judgment by the Supreme Court of India holds immense significance in the annals of human rights protection. This judgment laid down very important guidelines for prevention of police violence and torture in custody. They address core areas of protection of fundamental rights, elimination of criminalization of police, and reforms in policing. The Apex Court issued a list of 11 guidelines to be followed in all cases of arrest and detention. 

Summary of the guidelines issued: The Court directed that the identification of the police personnel making the arrest should be clear and recorded, it directed for mandatory preparation of an arrest memo that has to be counter signed by the arrested person. While dealing with the issue of intimation of arrest, the Court issued directions for immediate intimation of arrest to a relative or a friend as soon as possible without undue delay and mandatory entry of the same in the case diary with the particulars of the officer who makes the arrest. To deal with issues of custodial injuries, the Court directed that the arrested person shall be examined for any injuries upon request and a copy of such inspection memo shall be given to the detainee after being countersigned by the officer making such inspection, the Court also directed that the detainee shall undergo a medical examination by a trained physician on the panel of approved physicians appointed by the Director of Health Services of the State or the concerned Union Territory every 48 hours while in custody. The Court further directed that the arrestee shall be provided with all documents including the arrest memo and the same shall be sent to the concerned magistrate for registration. The Court also issued mandatory directions that the arrestee shall be informed of his right to meet with an attorney of his choice even during interrogation and that a control room shall be provided at all Central and State levels wherein an intimation of arrest of any arrestee shall be made within 12 hours of his/her arrest. 

This judgment also laid stress on India’s ratification of the UN Convention against Custodial Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment (1984)

Some other important judgments that lay emphasis on the rights of an arrested person are, Joginder Kumar v. State of UP.22 Where the Supreme Court gave directions that no arrest can be made on mere allegations or suspicion and issued certain directives to be followed at the time of arrest. In Nilabati Behera v. State of Orissa23 the apex court pulled up the state for its responsibility for violation of fundamental rights and ordered for criminal proceedings against the responsible police officers. The court even ordered a compensation of INR 1.50 lakh to be paid to the family of the deceased. 

CONCLUSION AND SUGGESTIONS

As observed above, an Individual under arrest has statutory rights under the India Law ensuring protection against illegal detention and enforcement of the fundamental rights. However, the ground reality remains adrift. The question remains that who will police the police?

No doubt that the judiciary has time and again intervened and taken cognizance to ensure enforcement of fundamental rights but nationwide implementation of such important guidelines and directions are far from reality.

Custodial torture continues to remain a vice in the hands of the law-enforcing authorities to extract information and confessions or to oppress the marginalized sections of society. Handing out strict punishments to the culpable officers is not preferred for the simple reason that the government is highly dependent on the law-enforcing authorities. The realization that the acts done by the executive wing of our government is first a public duty by public servants is essential to break the chain of torture and violence. 

The need of the hour is to formulate strict police reforms to educate and train officials involved in cases involving deprivation of liberty. Access to prisons should be regular, State government should ensure that CCTV are installed at every police station and the same should be subjected to weekly audit by an independent body. As suggested by the Supreme Court24 surprise inspections by non-official visitors should be made mandatory which would act as a preventive measure against any form of custodial torture/violence. 

The 273rd law commission report25 on “Implementation of the United Nations Convention against torture and other cruel, Inhuman and degrading treatment or punishment through legislation” must be adopted through legislative process. Further, The Prevention of Torture Bill 2018 which was introduced with the objective to ‘provide punishment for torture inflicted by public servants or any person inflicting torture with the consent or acquiescence of any public servant…’has unfortunately taken a back seat and the need of the hour is to give the bill serious consideration.

Salient features of the bill: The bill mentions that India is a signatory to United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.

The bill defines torture as an act by a public servant or by a person with acquiescence of a public servant, causes grievous hurt or danger to life, limb or health (whether mental or physical).

Further the bill proposes punishment of minimum 3 years which may be extended to 10 years and fine, for torture inflicted for purpose of extorting confession, or for punishing or on the ground of religion, race, place of birth, residence, language, caste or community or any other ground. 

The state should also make efforts to try and educate individuals about their rights, a notice, or a pictorial representation, or free legal aid shall be ensured to any arrested person if in need so as to ensure that he/she is well aware of his/her rights. Such attempts at informing the general public about their rights should be promoted and encouraged by the state governments. 

DISCLAIMER: This article has been made available for the purpose of providing information only for the reader’s knowledge and personal use. Please take note that the content and information contained in this article should not be construed as nor relied upon as legal advice. The recipient of the information contained herein should not act, nor refrain from acting, based upon any or all the content provided herein and should always seek the advice of a competent legal counsel licenced to practice the relevant law in the appropriate jurisdiction.

Abhinav Sharma and Kunal Srivastava are Partners at Sharma Srivastava and Associates, Noida.

CITATIONS:

  1. State of U.P v Naresh & Ors (2001) 4 SCC 324, Kali Ram v. State of H.P. (1973) 2 SCC 808.
  2.  Section 50 Code of Criminal Procedure, 1973 (Cr.P.C.).
  3.  Ajit Kumar Sannah v State of Assam, 1976 Cr LJ 1303 (Gau-DB), Sheesh Ram v State of UP, 2006 (55) ACC 750 (All), Setrucharala Chandrasekhara Raju v State of AP, 2001 (3) Crimes 152 (AP).
  4.  Article 22(1) The Constitution of India, 1949.
  5.  Section 75 Code of Criminal Procedure, 1973 (Cr.P.C) .
  6.  Section 41D Code of Criminal Procedure, 1973 (Cr.P.C).
  7.  Section 313 Code of Criminal Procedure, 1973 (Cr.P.C).
  8.  Phula Singh v. State of Himachal Pradesh AIR 2014 SC 1256
  9.  Prahlad v. State of Rajasthan, 2018 SCC Online SC 2548 (Supreme Court).
  10.  Ramnaresh & Ors. v. State of Chhattisgarh, 2012 4 SCC 257 (The Supreme Court of India), Munish Mubar v.  State of Haryana, (2012) 10 SCC 464 (The Supreme Court of India), Raj Kumar Singh @ Raju v. State of Rajasthan, 2013 SCC Online Raj 2350 (The Supreme Court of India)
  11.  Section 167 Code of Criminal Procedure,1973 (Cr.P.C) 
  12.  Amrik Singh v. State of Punjab, 2000 CriLJ 4305 (P&H)
  13.  Zahira Habibullah Sheikh and Ors v State of Gujrat & Ors (2006) 3 SCC 374.
  14.  Section 163 Code of Criminal Procedure, 1973  (Cr.P.C)
  15.  D.K Basu v State of West Bengal, AIR 1997 SC 610
  16. .
  17.  Joginder Kumar v State of Uttar Pradesh (1994) 4 SCC 260.
  18.  Available at:https://ncrb.gov.in/en/crime-in-india-table-addtional-table-and-chapter-contents?field_date_value%5Bvalue%5D%5Byear%5D=2019&field_select_table_title_of_crim_value=15&items_per_page=50 
  19.  Nilabati Behera v. State of Orissa (1993) 2 SCC 746
  20.  Writ Petition No. 7042/2020 Madras High Court.
  21.  D.K. Basu v State of West Bengal, AIR 1997 SC 610
  22.  Joginder Kumar v. State of U.P. 1994 AIR 1349, 1994 SCC (4) 260
  23.  Nilabati Behera v. State of Orissa, 1993 AIR 1960, 1993 SCR (2) 581
  24.  D.K. Basu v State of West Bengal, AIR 1997 SC 610
  25.  Law Commission Report No. 273 Available at https://lawcommissionofindia.nic.in/reports/Report273.pdf 
Column

Opinion – Contempt of Court: A Stark Contrast Between Prashant Bhushan and Justice CS Karnan

This article looks at two cases of Contempt of Court, adjudicated by the Supreme Court of India. The stark difference between the two cases, with no plausible explanation, is quite telling about the power dynamics of the country. 

By: Arnav Sharma, 2nd year, B.B.A. LL.B, Jindal Global Law School.

India loves the Contempt of Courts Act, archaic legislation first enacted in 1926 by the colonial rulers, the British. Having its origins in British law, it was amended in 1971 and has been like that ever since. Contempt of Court is the offence of being disobedient or disrespectful towards a court of law, in the form of behaviour that defies the authority, justice and dignity of the court. The UK did away with the Contempt of Court long ago. But in India, it seems like it is here to stay. 

The Supreme Court’s contempt of court ruling against Prashant Bhushan stirred India’s soul. Liberal anger poured, with several judges even openly speaking in his support. But not too long ago, many of them watched in silence when Justice CS Karnan was sent to jail for 6 months for calling out corrupt judges. That the outrage is selective is so obvious. Saying that this is because of the difference of caste would do it injustice; Prashant Bhushan is a Brahmin, the highest caste, while Justice Karnan is a Dalit, the lowest.

But, Prashant Bhushan is a product of Delhi’s power elite, he is ‘one of them’ only. Justice Karnan is an outsider to this cosy circle. 

But contempt notices or proceedings won’t make Bhushan lose sleep; he has faced similar charges in 2001 and 2009. Every single time, his main argument has been Freedom of Speech. The gutsy and veteran advocate has never missed an opportunity to hammer the judges on corruption. He has rarely put forth any evidence in the public domain but still made huge allegations. He was fined Rs.1. 

On the other hand is Justice Karnan. As long as he shot off letters to Chief Justices of High Courts, to the CJI and occasionally to the Prime Minister, and his unpleasant accusations and theatrics as a self-proclaimed crusader were confined to the High Courts, the Supreme Court was hardly perturbed. But when Karnan defied the Supreme Court, the SC set up a seven-judge bench led by the CJI, and unanimously sentenced a sitting HC judge to prison, without even initiating the proceedings for his impeachment. 

On the bench were Justice Jasti Chelameswaram and Madan B Lokur, both of whom have now endorsed the resolution expressing solidarity with Bhushan and condemning the SC verdict holding him in contempt.

They termed his criticism of judges and the SC as the right to free speech and demanded the withdrawal of contempt proceedings. 

This raises the question: Why didn’t both these judges adopt the same evaluation process while deciding the case against Karnan? Why didn’t they dissent with the majority and gave Karnan a clean chit for exercising freedom of speech alleging corruption amongst judges? If Bhushan is exercising his ‘freedom’ while alleging that judges of the Supreme Court are corrupt, biased, and tilted towards a political party, or ideology, why is it that the same ‘freedom’ is not afforded to Justice Karnan, who was also alleged corruption in the judiciary. If they are right on Bhushan, then they are wrong on Karnan. 

The silence on the Karnan case is shocking. Justice Karnan did not make any public allegations against any judge. He had sent his complaint to the Prime Minister’s Office in a sealed envelope. He had asked for independent investigations into the claims made by him and offered to provide evidence backing his claims. Contrast this to Bhushan, who loud-mouthed on social media, singling out specific and selective judges and thus, in the public domain. 

So how does one understand the absolute silence in the Karnan case, but widespread outrage and support in Bhushan’s case? The simplest way to look at this is as I mentioned above; Justice Karnan is a Dalit outsider, not a part of the system, the media acted with bias and failed to present his case in totality.

The SC itself wished the same, that nobody ever really knows Justice Karnan’s side of the story, by explicitly stating in the Karnan judgement that ‘the media cannot publish or broadcast any statements made by Justice Karnan’, an unbelievable act by the Constitutional Court of a free, democratic republic.

On the other hand is Prashant Bhushan who belongs to the Upper Caste and the ruling elite. His father was Shanti Bhushan, the Law Minister in the Moraji Desai Cabinet, and the father-son duo was the 75th Most Powerful Indians, according to The Indian Express in 2009. 

Another reason for the same is that Justice Karnan was not just challenging the HC and SC, but he had put the whole power structure under scrutiny. The ‘Dalit gaze’ on the upper caste dominated judiciary, was unnerving for the Lutyens’s elite. Justice Karnan put into spotlight the caste domination, hegemonic structure and the opaque and non-transparent/ non-accountable judiciary of India. This is almost blasphemy for the Lutyens’s elite. The same was held by the Kariya Munda Committee of the Indian Parliament (2000-2001), which had found that despite there being suitable, eligible and well qualified SC/ST candidates (judges in District and High Courts), none of them were in the judgeship of the Supreme Court. 

Bhushan finds many new friends among the elites after the Supreme Court verdict. Not only because he is one of them, but because he is a man of the system. Justice Karnan is an outsider and, naturally, he found no friends among the elites and opinion-makers.

In my opinion, the Supreme Court’s judgement on Justice CS Karnan is another ADM Jabalpur; a blunder for which the court, and those who stayed silent on it; Justice Karnan’s pleas of mercy, pardon and review were ignored by the Parliament, the Supreme Court and by the President of India, will repent; it is a blunder of such high order, that it will come to haunt the court in the future, and they’ll have to apologize, just as Justice P.N. Bhagvati had to in 2011, 40 years after his troubled judgement in the ADM Jabalpur case.

Column

Crisis in the International Criminal Court

This article looks at the deep crisis in the International Criminal Court. From a rocky start, after just existence of 18 years, the cracks in the ICC are increasing day by day, with its legitimacy and authority being questioned and challenged by some of the most powerful states in the world.

By: Arnav Sharma, 2nd year, B.B.A. LL.B, Jindal Global Law School.

Based on the Rome Statute of 1998, the International Criminal Court (ICC) is a permanent ‘International Tribunal/ Court’ that seeks to prosecute individuals for the crimes of Genocide, War Crimes, Crimes against Humanity and Aggression. Having started its operations in 2002, and with 123 member states, the ICC has recently been going through a crisis; the criticism against it has never been this stronger, nor has it faced so many accusations of bias, and being called irrelevant, which brings into question: is the ICC required. After analyzing the data, statutes, laws and the views of practitioners and academia, I recommend making changes to the ICC to make it more inclusive, accountable, transparent and less biased. 

This paper looks at (I) brief history of the ICC (II) Beginning of the crisis and Criticisms of the ICC (III) Concluding remarks. 

(I)

Historically, many mass atrocities and grave crimes have been conducted by men with impunity. Be it Chengis Khan, Timur the Lame, Vlad the Impaler or Ivan the Terrible, numerous such men killed, raped, maimed, and tortured millions of people throughout the world.

After the Industrial Revolution, with the advent of technological advancements, and the Enlightenment period, with freedom, liberty and equality being the buzzword, and with the end of feudalism and monarchy, and the subsequent rise of Capitalism and the Democratic Republic states around the world, it was thought that maybe such atrocities were a thing of the past. World War I shook this reality.

The calls to establish an international forum where political leaders accused of committing grave crimes could be tried and punished first arose in the Paris Peace Conference of 1919. The Second World War, the deadliest conflict in human history, saw the setting up of two ad hoc tribunals to prosecute Axis leaders for war crimes. The International Military Tribunal in Nuremberg, and the International Military Tribunal for the Far East in Tokyo. The General Assembly of the United Nations requested the International Law Commission to draft statutes that could establish a similar permanent court, and the ILC came up with two statutes, but they were shelved as the entire world was facing the rampant rise of the Cold War. After the Yugoslavian wars, and the Rwandan Genocide, the International Criminal Tribunal for the former Yugoslavia was formed, to prosecute the large-scale atrocities, ethnic and racial cleansing by the armed forces during the wars. Similarly, the International Criminal Tribunal for Rwanda was set up following the Rwandan Genocide. The creation of these tribunals strengthened the calls for a permanent solution to this issue. 

The ILC presented a final draft statute in 1994, and a special conference of the General Assembly was held in June 1998, to negotiate and finalize the treaty that would serve as the court’s statute. The Rome Statute of the International Criminal Court was adopted by a vote of 120 to 7, with 21 abstentions. 

After 60 countries ratified the Rome Statute, the ICC began its operation on 1st July 2002, with its headquarters in The Hague, the Netherlands. It has 123 member nations and does not enjoy a universal jurisdiction, but the only jurisdiction over member countries. 

(II)

It is not that the opposition against the ICC is new but has been since it’s very inception. Only 123 countries are members of the ICC. Almost 70 countries, including the superpower United States, Russia, India, China, Israel, and the Philippines with many more nations have attempted to or have left the ICC. The ICC has been repeatedly called out for its hypocrisy, anti-Semitic, anti-African bias. An overwhelming majority of investigations and convictions by the ICC have been in the African continent, while many crimes have been committed with impunity around the world which the ICC claims to prosecute. The ICC is accused of having an anti-Semitic and anti-Israel stance since it’s very inception. The United States has repeatedly said that the ICC looks at the Israeli-Palestinian issue from a biased lens. Similarly, is what is alleged by African leaders and politicians, who have said that the ICC exists only to ‘harass small and weak nations’, while completely ignoring what the rich and powerful countries are doing.

The ICC has long been condemned for not taking any action against the United States for its actions in the Middle East, especially in the Iraqi invasions, where multiple US forces personnel and the Central Investigation Agency (CIA) have been accused of killing innocent people, raping women and destroying their properties.

Similarly, other European countries such as the UK, Germany and France’s, and Australia’s armed forces deployed abroad have been accused of committing war crimes, but the ICC has kept mum over such issues. This has further raised questions over its credibility and claims of impartiality. 

But the real crisis began in 2017, when an investigation by eight international media groups of the European Investigative Collaboration found bombshell evidence after analyzing 40,000+ confidential documents of the ICC, finding the open bias and political games in the ICC. Evidence showed that the former and First Prosecutor of the ICC, Luis Moreno Ocampo (2003-2012), along with the ICC tried to detain Cote d’Ivoire’s ex-President Laurent Gbagbo, without having an arrest warrant and before even preliminary investigation. French intelligence documents showed that the same was being done by the ICC and Ocampo in confluence with the new President of Cote d’Ivoire, who wanted political revenge and snatch the control from Gbagbo. Further documents proved that Ocampo and the ICC knew they had no judicial basis and lacked serious evidence to prove that Gbagbo had indeed committed, crimes against humanity, but they still did the same. 

Another explosive finding was of Libya. Ocampo had issued an arrest warrant in 2011 against Muammar Gaddafi, the longest-serving and brutal dictator of Libya, but could not follow through because he was killed later that year. After stepping down from the role of the Prosecutor of the ICC, he worked in a private American law firm, Justice First. One of Justice First’s client was Hassan Taranaki, a very wealthy and powerful Libyan business, once a close friend of Gaddafi, and now an ally of General Haftar Khalifa, the most powerful man and de-facto ruler of Libya. When Ocampo found out that his successor, the new ICC Prosecutor, Fatou Bensouda, planned on prosecuting General Khalifa, he not only worked to protect General Khalifa but also helped the ICC prosecutor to indict Khalifa’s enemies. For this, he received more than $7 Million from a foreign donor, suspected to be living in Qatar. 

EIC’s investigations also show how, after indicting Kenyan President Uhuru Kenyetta, for crimes against humanity in 2010, the ICC and its Prosecutor took a complete U-turn without any plausible explanation.

After leaving office as the Prosecutor, Ocampo began talking about offering Kenyetta ‘an honorable way out’. He then contacted his successor, Bensouda, and they both decided to ‘honourably acquit Kenyetta’. It is mind-blogging to think that the same man who convicted Kenyetta, just a few years ago, would want to let him off after leaving office. It was widely believed that the same was done to appease the United States, which saw Kenyetta as a key ally in the African region, and its fight against Al Shabab in Somalia. 

The EIC findings shredded whatever credibility the ICC had left. The US had never cooperated very much with the ICC, with President George Bush staunchly against it. The Obama administration saw some cooperation on some issues. In 2019, the Pre-Trial Chamber of the ICC refused to authorize an investigation into the alleged war crimes that have been committed by all the parties in Afghanistan since 2003. The Prosecutor had submitted a 20,000 plus page request, in 2017, however, the PTC held that the requested investigation ‘would not serve the interests of justice’. This decision had led to huge dismay and uproar around the world. While the United States, Israel and its allies celebrated this decision, many around the world understood that the ICC had succumbed to the intense pressure and bullying of Washington. However, when the ICC in 2020 did authorize an investigation, the United States began a belligerent, brutal and relentless attack on the ICC. Former NSA John Bolton used inflammatory rhetoric and called the ICC ‘illegitimate’, and President Donald Trump via an EO threatened to arrest ICC officials if ICC brought criminal charges against its personnel, and revoked the Visa of all ICC officials, including the Prosecutors. This has only deepened the credibility crisis the ICC is going through. The ICC is also plagued with cumbersome, lengthy and very slow trials and weak management. Many accused are still at large, including Sudan’s President Omar al-Bashir, and billions of dollars have been spent for just 3 convictions for core international cases. Also, Bashir and Cote d’Ivoire’s former President Laurent Gbagbo got acquitted upon appeal. This made ICC the subject of scorn and ridicule around the world. It also raised questions over the Prosecution’s ability to get convictions in high-profile cases. 

(III)

The challenges the ICC face are numerous and tough, but the ICC is here to stay.

The ICC is not solely to be blamed for that; the member states have not been very supportive of the ICC, and the resources have been limited.

With major powers of the world refusing to join and fund the ICC, and threats of more leaving, how these issues are solved, and the ICC regains its credibility, transparency and the closes in the gap between the unique vision captured in the Rome Statute, to what it is today, is to be seen. 

Column

Freedom of Exploration and Use of Outer Space

Humans are driven towards exploring space and discovering new worlds. This article elucidates the meaning of outer space, the right to explore outer space and the limit up to which this right could be enjoyed.

By: Suhaiba Geelani

Introduction

“The Earth is the cradle of humanity, but mankind cannot stay in the cradle forever.” Considering the lineage of Earth, Earth is a descendant of the Universe. It is a small town with many neighbours in the big Universe. Back in old days, the Sovereign States had the rights of their land going up forever and ever in perpetuity. But then scientists explored outer Space and things got complicated.

What is Outer Space?

Outer space is that expanse of gigantic Universe that exists beyond Earth’s atmosphere. It includes all the space above the lowest perigee achieved by any satellite put into orbit. Space encompasses that aerial arena which cannot be claimed by any Sovereign State.

The relations between the States as well as their relations with international organizations in the sphere of outer space is regulated by International Space Law, developed by The Committee on the Peaceful Uses of Outer Space.

Whilst the Committee has concluded five international treaties and five sets of principles on space-related activities, the Outer Space Treaty of 1967, forms the base of International Space Law. All the five treaties deal with issues such as the non-appropriation of outer space by any one country, arms control, the freedom of exploration, liability for damage caused by space objects, the safety and rescue of spacecraft and astronauts, the prevention of harmful interference with space activities, and the environment, the notification, and registration of space activities, scientific investigation, and the exploitation of natural resources in outer space and the settlement of disputes. The freedom of exploration, and use of Outer Space, enshrining the idea that outer space is Res-Communis i.e. common heritage of mankind, is one of the key provisions of international outer space law. Mere a swift glance at this vital concept begs numerous questions. Who can explore outer space? What does exploration involve? What is the limitation of this freedom?

Who can explore outer space?

Article I of the Outer Space Treaty provides that outer space, including Moon and other celestial bodies, shall be free for exploration and use by all states without discrimination of any kind, on the basis of equality, and, in accordance with International law, and there shall free access to all areas of celestial bodies. It reiterates that outer space is not subject to national appropriation. It shall be the province of all mankind. No State can claim sovereignty over them by means of use or occupation or any other means. The language of the provision is extensive. It refers to “all” States, and for this reason, there can be little doubt concerning the intention of the drafters to include or exclude any specific State. Thereby, all the State, Parties, signatory, or Non Parties have the right to freely explore and use the outer space. The treaty does not specifically preclude other international entities like international governmental organizations, non-governmental organizations and individuals, etc. from the exercise of this freedom. However, the activities of non-governmental entities require the authorization and continuing supervision by the State concerned. In the exercise of this universal right, States are free to determine all aspects of their participation in the exploration, and use of outer space on an equitable and mutually acceptable basis as long as the contractual terms in such cooperative ventures are fair, reasonable and in full compliance with the legitimate rights and interests of the parties concerned. The states are obliged to respect, and not hamper one another’s interests in this sphere.

What does exploration and use involve?

The Exploration and use cover a wide range of human activities irrespective of whether such activities are carried out directly by man or indirectly through the use of his instruments. Outer Space Law does not specifically mention any list of activities that the countries are supposed to carry out in the outer space.

However, each of the treaties as well as declarations constituting International Space Law, stresses the notion, that the activities carried out in outer space and whatever benefits might be accrued from outer space should be devoted to enhancing the well-being of all countries and humankind. 

The benefits may be the actual or the potential benefit including material, political, psychological, propaganda, military and other benefits and interests. The activities of States in the exploration and use of outer space shall be carried on in accordance with international law, including the Charter of the United Nations, in the interest of maintaining international peace and security and promoting international co-operation and understanding. The “Benefits Declaration” declares that all States, particularly those with relevant space capabilities and with programmes for the exploration and use of outer space, should contribute to promoting and fostering international cooperation on an equitable and mutually acceptable basis. In this context, particular attention should be given to the benefit for and the interests of developing countries and countries with incipient space programmes stemming from such international cooperation conducted with countries with more advanced space capabilities. The General Assembly, after recognising the significance of nuclear power has even extended its limited usage in the outer space as well.

Limitations 

The ubiquitous right of freedom of exploration and use of outer space is not absolute. It is limited by a number of both general as well as
specific provisions. 

The  Outer Space Law explicitly acknowledged that the exploration and use must be carried on in accordance with the provisions of International Law and for the benefit of mankind.  Part II of Article IV of the Outer space treaty specifically limits the exploration and use of moon and other celestial bodies for peaceful purposes.

Though , the term peaceful has not been defined anywhere, it could be interpreted that peaceful simply means non aggressive or amiable . Space law prohibits installation of any nuclear weapons or weapons of mass destruction, establishment of military bases or any kind of military operations on celestial bodies or satellites or space stations. It forbids national appropriation and harmful contamination of outer space. 

Conclusion

International Space Law has appreciably maintained and regulated the conduct of the states in the sphere of Outer Space. But it contains certain scanty provisions, which are in dire need of updates. In addition to this, Space and its exploration a nd use have drastically changed over last few decades, so a robust space regime is of utmost importance.

Column

Muslim Stand-Up Comic Jailed-For Jokes They Thought He Would Crack

To suppress free speech is a double wrong. It violates the rights of the hearer as well as those of the speaker

-Frederick Douglass

Written by: Rahul Krishna Sharma, 1st Year at Campus Law Centre, Delhi University

Introduction

On 1st January 2021 stand-up comedian, Munawar Faruqui and four of his associates were arrested by the Indore Police, following a complaint from Eklavya Singh Gaur, son of Indore BJP MLA Malini Gaur. In the complaint, Mr Gaur complained that the aforementioned allegedly insulted Hindu deities during a comedy show and profaned Home Minister Amit Shah.

This article intends to analyse the Munawar Faruqui case and seeks to answer a few unanswered questions that lay still in the political and legal spectrum of India.

Further, this article is divided into two parts. The first part attempts to analyse as to who exactly is Munawar Faruqui and why is it important to understand him in the context of the 21st century India. The second part of this article intends to scrutinize the case made against him and to provide a deep seethed understanding of the legal sections and precedents that are in play.

Munawar Faruqui: A Contextual Understanding

It would be highly erroneous and careless on my part if I leave this section of the article by just labelling Munawar Faruqui as a standup comedian or an entertainer because the truth is, he is much more than that.

Munawar Faruqui, a 28-years-old small towner Muslim comedian residing from Junagadh is today the poster boy of a modern young Muslim man who is unconventional to the bone, not only because of this career choice but also because of his (a Muslim man’s) choice to voice himself against the ruling party in a highly polarized Hindu India. He is aspirational in the sense that he made it in the most unconventional field and in the most unconventional way and sees himself beyond his religious identity which in today’s India is highly commendable. However, it’s not just this. Munawar essentially carries two burdens on him. First, the lack of financial capital which in crude terms is “poverty” and poverty, does not just deny the material benefits but as Amartya Sen explains, the exclusion of poor from participation and access to opportunities and activities is a major nonmaterial dimension of poverty that also needs to be recognized and this, in its entirety is the second burden that Munwar faces and that is of the social exclusion. However, this social exclusion doesn’t just arise from him being poor but also stems from his religious identity i.e. him being a Muslim man in an India that is submerged in the idea of Hindutva.

 What really happened?

The question “What really happened” is intrinsic and is not just a question for Munawar but also for the Indian masses who stand by the very soul of the Indian Constitution which swears to be secular and democratic.

On 1st January 2021, Faruqui was slated to perform at Indore’s Monroe Café when a mob led by Eklavya Singh Gaur, convenor of the Hind Rakshak Sanghatan entered the café and demanded the performance to be halted. Gaur further alleged that the show mocked Hindu deities by passing indecent comments and also reprimanded Faruqui for a previous video that was uploaded by the comedian on his Youtube page. The audience however retaliated with a different account and reported that the event had just started and went on for five minutes or so and nothing was said that could be construed as hurting religious feelings. The police do not have any video evidence of the event.

The Legal Proceedings

The Madhya Pradesh Police, after a preliminary probe, booked Faruqui under IPC section 295-A, 298(uttering words with deliberate intent to wound religious feelings) and 269(negligent act likely to cause spread of diseases)

Section 295A of the IPC

Section 295A of the IPC states that whosoever deliberately and maliciously intends to outrage feelings of any class by insulting its religion or religious beliefs in any manner will be punished.

However, it becomes essential to prove the mens rea i.e., guilty mind of the person accused. With no video evidence and the audience siding with Munawar this entire trial can always be judged as a political trial rather than a legal trial, in which case the issue entirely changes. The issue then is not whether any man is above the law.

It is whether any man is below the law and in this case, it is our very own Munawar whose identity became the very reason for him to be treated differently.

In a religious and sensitive country like India, anything can be interpreted to be an insult to someone’s religious beliefs.

However, criminal law cannot operate to curb free speech and liberty in order to protect the religiously sensitive kind.

The applicability of Section 295A came up before the Supreme Court in the 1957 Ramji Lal Modi Vs. The State of U.P [1957] INSC 31. 

In this case, the constitutionality of section 295A was challenged. However, this case came up before the court, post the 1st Constitutional Amendment, which introduced reasonable restrictions in Article 19. Therefore, it was difficult for the court to strike down the law as unconstitutional.

However, the court clarified that—

“… s. 295A does not penalise any and every act of insult to or attempt to insult the religion or the religious beliefs of a class of citizens but it penalises only those acts of insults to or those varieties of attempts to insult the religion or the religious beliefs of a class of citizens, which are perpetrated with the deliberate and malicious intention of outraging the religious feelings of that class. Insults to religion offered unwittingly or carelessly or without any deliberate or malicious intention to outrage the religious feelings of that class do not come within the section. It only publishes the aggravated form of insult to religion when it is perpetrated with the deliberate and malicious intention of outraging the religious feelings of that class”

The Supreme Court in Shreya Singhal [AIR 2015 SC 1523] has argued that while Ramji Lal Modi did not strike down Section 295A, the impugned provision was read down to mean that aggravated forms of insults to religion must have a tendency to disrupt public order.

More recently, in the Mahendra Singh Dhoni Case [AIR 2017 SC 2392], the Supreme Court reiterated that in Ramji Lal Modi “emphasis has been laid on the calculated tendency of the said aggravated form of insult and also to disrupt the public order to invite the penalty.”

The established precedents clearly indicate the following. 

 Firstly, 295A does not penalise every act of insult.

Secondly, deliberate and malicious intention of outraging religious feelings must be proved.

Thirdly, only an aggravated form of insult to religion is punished.

Lastly, the aggravated form of insult must have a tendency to disrupt public order.

To argue from a perspective that Munawar Faruqui has desecrated section 295A is not only a death to free speech but also is against the wishes of the Prime Minister of the country who rightfully says

“I think we need more satire and humour. Humour brings happiness in our lives. Humour is the best healer.”

 Citations:

  1. Ramji Lal Modi Vs. The State of U.P [1957] INSC 31
  2. Shreya Singhal [AIR 2015 SC 1523]
  3. Mahendra Singh Dhoni Case [AIR 2017 SC 2392]
  4. Munawar Faruqui’s Case- Misuse Of Section 295A Of Penal Code And An Aggravated Insult On Free Speech (livelaw.in)

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