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Koodankulam: A Court in the Supreme Contempt of its People

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P K Sundaram

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By P. K. Sundaram

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The Supreme Court’s verdict on Koodankulam rests on three hugely contested premises: the judges’ belief in the necessity of the nuclear energy for India’s progress, their faith in the country’s nuclear establishment to perform its role, and the judges’ notion of the larger public interest and the apprehensions of small sections which should make way for the country’s progress. Not only have the judges given judicial sanctity to these contestable propositions, but have also completely overlooked the Koodankulam-specific brazen violations of the government’s own norms, raised by the petitioners.

Broken justice

The Supreme Court’s judgement on Koodankulam would go in India’s history in line with the Narmada Dam verdict and other judicial pronouncement reflecting the inability of our post-independence democratic institutions to overcome the narrowly defined confines of ‘larger public interest’, ‘development/growth’ and ‘national conscience’.

Whose interests are larger?

While the petition filed by the Chennai-based environmentalist group Poovulagin Nanbargal presented specific concerns of safety hazards and violations of the government’s own norms in implementing the project, India’s growth and the assumed indispensability of nuclear energy for it is a recurring rationale in the Supreme Court’s final verdict. The judges have gone beyond the scope of the prayer and have extolled nuclear energy as essential for India’s growth, terming the ‘fears’ of people as misplaced. The judgement goes on to prescribe that ‘minor inconveniences’ must be tolerated in the larger interest of the nation.

People’s Movement is Emotional fear, Nuclear Establishment has the Expertise

The second paragraph of the judgement itself calls the people’s massive agitation in Koodankulam an “emotional reaction” to the setting up of the reactor. It almost mocks the people’s concern saying the “fears and unrest” might not have been thought of by Enrico Fermi who set up the first nuclear power plant. Since then, the judgement says, people have reacted emotionally when every new reactor is commissioned. The judgement goes on to add that the people’s concern was mooted even the constituent assembly when the Constitution was being drafted. Does this imply that nuclear energy in India should be regarded a fait accompli?

The judgement accepts the establishment’s narrative on nuclear energy in India unquestioningly.

  • The judgement extols the Atomic Energy Commission (AEC) as the repository of final authority on everything nuclear and the Atomic Energy Regulatory Board (AERB) as a competent regulator, glossing over its dependence on the AEC for funds and human resources and its being obliged to report to the AEC whose activities it is essentially mandated to regulate.
  • The verdict also reposes complete faith in the national policy on nuclear energy and the existing framework to control and regulate all radioactivity-related activities in India.
  • Under the title ‘National Policy’ (page 9) the judges narrate the evolution of India’s 20 nuclear power stations built over last four decades producing 4780 MWs today with a rare clinical coldness, without questioning the nuclear establishment’s claims and its performances in the same period, while under the same title on page 10, it mentions that renewable sources provide “small share” of our total electricity – 15%, which is actually 6 times more than the share of nuclear energy. 
  • In its overview of the global status of nuclear energy, the rapid downward trend of the industry post-Fukushima doesn’t find a mention – France produces 74.6%, US has 104 reactors, world had 439 reactors in 2007 producing 13-14% of total energy. The reality is, nuclear power produced just 11% in In 2011 and thedownward trend is expected to continue due to larger number of reactors ageing and lesser numbers being built today.
  • It doesn’t even question the NPCIL’s claims of producing 20,000 MW by the year 2020 and 63,000 MW by 2030.
  • Transgressing the scope of the petition, the judges have mentioned that “one of the reasons for preferring nuclear energy as an alternative source of energy is that it is a clean, safe, reliable and competitive energy source which can replace a significance of the fossil fuel like coal, oil, gas etc.” The judges have not bothered to see that each of these adjectives have been questioned and have led to review of national policies, including in France where a national energy transformation law is underway.

As the questions raised in the petition involved technical problems plaguing the Koodankulam project, the Court consulted the government’s experts – officials from the Nuclear Power Corporation of India Limited (NPCIL) and the Atomic Energy Regulatory Board (AERB). Unfortunately, no independent institutionalised expertise on nuclear issues exists in India outside the confines of the Department of Atomic Energy.  This led to a situation in which the Judges have no option than to believe the same official experts against whose refusal to acknowledge the risks was the petition filed. While this made the entire proceeding lop-sided in the first place, there was still scope for the judges to look into the glaring violations and specific risks in Koodakulam which do not fall strictly under nuclear expert issues.

The crucial issues of supply of sub-standard equipments by ZiO-Podolsk, violation of Coastal Regulatory Zone stipulations and Environmental Impact Assessment norms, lack of clarity on the crucial issue of spent fuel storage, non-compliance with proper mock evacuation drill required by the AERB norms, much larger population in the vicinity than stipulated etc. have either been glossed over or have been legalized post-facto.

Court validating a political deal?

The judgement mentions India’s civil nuclear agreement with the US in 2005 and then with France and UK in 2008 and 2010, and explains them as the govt’s effort give effect to the “National Policy for development” for which “India has entered into various bilateral treaties and arrangements with countries which have considerable expertise and experience”. It is a well known fact that the nuclear deal came from the US side and the energy justification was a later concoction to justify it. The integrated energy policy of 2006 came one year after the Indo-US nuclear deal. In fact, it was the nuclear establishment in India which was the first one to get surprised with the news of Indo-US nuclear deal in 2005. The deal was essentially about the US manoeuvring internationals institutions norms of the  NSG and the IAEA to legitimise India’s nuclear weapons and ensure its entry into global international commerce. India’s compulsory purchase of the French, American and Russian reactors was a price it paid to achieve this. Former AEC Chairman Anil kakodkar himself has admitted in the past that importing foreign reactors, with an embarrassingly low liability cap,  had to do with accommodating these countries’ interests.

 Nuclear Energy and National Policy

After enthusiastically elaborating India’s national policy on nuclear energy, the judges say, “it is not for Courts to determine whether a particular policy or a particular decision taken in fulfilment of a policy, is fair” (page 13). Precisely. The petition before the court nowhere sought to discuss the rationale or desirability of the nuclear policy, if at all India has one. The petition raised concrete questions about safety norms and their violations. Then why the judges have went on to declare nuclear energy is green, clean and essential for India’s development? The judges quote an old case in Lodon to undermine that its “only duty is to expand the language of the Act in accordance with the settled rules of construction”, and hence “we cannot sit in judgment over the decision…for setting up of KKNPP in Kudankulam in view of the Indo-Russia agreement”. Fine, but what about ensuring that the inter-governmental agreement between India and Russia is made public and the liability provisions within it be made compliant to the law of the land?

After the aforementioned introductory part, the SC verdict has two parts – the first deals with safety and security of NPP, International COnventiions and Treaties, KKNPP Project, NSF and its management and transportation, DGR, Civil Liabilities, DMA, CSA and other related issues. Part II deals with environmental issues, CRZ, desalination plant, impact of radiation on eco-system, expert opinions, etc.

In part I, the verdict seeks to find out whether the project has adequate safety measures. In doing so, it starts with elaborating the Safety Codes of the AERB (in 12 full pages), without questioning its institutional autonomy or making mention of the CAG’s report on the AERB in which it strips down the myth of AERB’s independence and its efficacy. Details of India’s international obligations and its adherence with IAEA safety norms, based on the AERB’s submission, take several pages more.

IAEA’s 2008 report emphasizing tripling of electricity supply by 2050 is highlighted by the judges. The IAEA’s contested claim of nuclear energy being a low-carbon electricity is adopted unquestioningly.

The verdict reposes its complete faith in “the safety and security code of practices laid down by the AERB, the IAEA and its supports so as to allay the fears expressed from various quarters on the safety and security of KKNPP”

The judges mention PUCL vs Union of India and others case of 2004, where the court upheld that the AEC deals with a sensitive subject. The veil of secrecy remains intact in 2013 even if the civilian and military nuclear facilities are separated as per the Indo-US nuclear deal.

Safety Issues:

Reading the Supreme Court verdict’s sections on Koodankulam’s safety is not much different than reading AERB’s or NPCIL’s stated policies on nuclear safety. Elaborate claims of safety standards and practices, but very little about whether these guidelines sufficiently address the specific questions raised by the protests, even less on how efficient and democratic these procedures are.

In the section under part-II titled “KKNPP  Project” the judges have looked into site selection procedures and site-specific vulnerabilities of Koodankulam. The judges come out convinced that Koodankulam is totally safe for the reactor project – having absolutely no potential of earthquake, Tsunami or other geological disturbances. The evidences presented by the petitioners about the area being geologically unstable and having a history of earthquakes, volcanism and karst have gone completely unheard.

Much attention has been given to the questions of safely storing Spent Nuclear Fuel (SNF) and finding a Deep Geological Repository (DGR) for KKNPP. These are generic issues plaguing nuclear reactors everywhere and globally the nuclear industry has been struggling to find the answers for several decades. Not surprisingly, there are ready-made and extremely tentative solutions: the NPCIL has agreed to find a repository to store nuclear waste and has given details of its long-term pursuits in this direction, and it has assured the court to safely story the SNF. The AERB’s code of “Management of Radioactive Waste” has been discussed at length, to be found sufficient to address the problem. Typically, Indian nuclear establishment does not acknowledge nuclear waste as waste, because it claims it will reprocess most of it for the second phase of its 3-phase  nuclear programme, to which even the judges have shown admiration. Lost of course is the fact that reprocessing leads to more harmful and long-term wastes and India’s phased nuclear program has been too far from becoming a reality. The judges note : “the experts feel that setting up of a DGR is not much of a technological challenge…but more of a socio-political issue”. The massive  disapproval of proposed waste repositories in the US and elsewhere was based on independent expert opinion is lost again. The verdict mentions a proposed DGR in the abandoned Kolar mines of Karnataka. Of course on this and other several important issues, the NPCIL retracting publicly from its position taken in affidavits filed in the SC had its own trail over last 6 months.

The judges have noted that the Koodankulam reactor has its Spent Fuel Pool inside the primary containment, with a capacity to store fuel equivalent to 7 years of full power operation of  the reactor. That the presence of SFP close to the reactor core complicated the accident in Fukushima and is a concern even today in Japan finds no mention, of course.

Fukushima never happened !

While the judges mention the post-Fukushima safety review ordered by the Prime Minister, they have failed to take into account the critiques of the whole process and the serious risks of relying on such an internal safety review without any independent supervision or assessment. On the 17 Koodankulam-specific recommendations, the court is assured by the AERB that the NPCIL will implement them satisfactorily. In the subsequent paragraphs, the verdict rhymes the nuclear establishment’s lullaby on radiation: We are exposed to radiation in our daily lives, cosmic radiation, radiation from earth’s crust, air travel, X0ray, CT-Scan, angiography, angioplasty etc etc.

In the section titled ‘Response to People’s Resistance’, the Supreme Court gives a sanitized, government version of the dialogue with people. It makes no mention of the fact that the 15-member expert committee appointed by the government did not even bother to meet the protesting people in Idinthakarai, declined from sharing essential safety-related documents with people and completely failed to address the questions raised by the movement. While this sham of a dialogue was on, the state government kept on piling false police charges, the local congress goons kept beating the protesters, the local media kept provoking against the movement leaders and none other than the PM indulged in maligning the people’s genuine struggle. The judgement quotes the government experts group’s conclusion at length and feels satisfied. It also takes no notice that the fact that the Ex-AEC Chief’s appointment as the head of expert committee constituted by the Tamil Nadu State Government subsequently reflected a seriosu conflict of interests.

Under the heading ‘Civil Liability for Nuclear Damage’, the judges in principle agree to the importance of strict liability in nuclear sector, but fail to address the Koodankulam-specific problem of opacity on liability issue. The Russian officials have been claiming they have an exemption from liability under the Inter-Governmental Agreement (IGA)

Discussion on Disaster Management Plan (DMP), the SC verdict elaborates about the guidelines of the National Disaster Management Authority (NDMA) on radiological emergencies and has pressed for better coordination between the NDMA, the DAE, and the state administration to ensure swift evacuation and management in case of a disaster. Much emphasis has been given on the need to spread awareness among the people about nuclear accidents, however, the brazen violation and bluffing by the NPCIL on disaster management receives no attention.

Although the Supreme Court quotes AERB’s norms on population near a reactor sites and specifically mentions that no public habitation should be there within 1.5 km radius of the reactor, it has failed to take into account the Tsunami Colony in Koodankulam where more than 2500 people reside at a distance of just 700- metres from the reactor. Also, the judges have held that the emergency preparedness plan (EPP) for KKNPP is adequate for around 24000 people in the 5 km radius called ‘sterilised zone’ while the norms stipulate not more than 20000 people. The catch here is, the even the 24000 figure used by the SC is taken from 2001 census, not the 2011 census!

The judges admit the importance of the mock-drills and off-site emergency exercises, but strangely caution that ‘such mock-drills are conducted to educate the public not to scare them away, but make them understand that the project is part of the national policy, participatory in nature, and hence we cannot remain as a nuclear-isolated nation’. This would only ensure that the nuclear establishment remains insulated from public scrutiny. The judges’ faith in the affidavit filed by the district administration on off-site emergency exercises flies in the face of reality.

In the last paragraphs of part-I, the Supreme Court judges have iterated their faith in NPCIL’s promise to fulfill its corporate social responsibility (CSR) – millions of rupees allotted for building schools, hospitals, roads and so on. From Tarapur to Rawatbhata to nearby Kalpakkam, local people have seen the realities of such promises.

The second part of the verdict, focused on environmental impacts, again starts with the need to look at environmental issues in the perspective of indispensability of nuclear power in the ‘national policy’ – nuclear energy has a unique position in the emerging economics in India, it is a viable source of energy and it is necessary to increase country’s economic growth !

The judgement in this part dwells elaborately upon the arguments presented by the both sides, but only to concur with the government that Koodankulam project does not violate environmental impact assessment guidelines as the project was notified in 1988, prior to enactment of EIA requirements in 1994! The flimsy affidavits filed by the NPCIL and the MoEF have found better audience with the Supreme Court judges. The court has elaborated upon the rather general and very lenient attempt of taking of environmental impacts in Koodankulam as per a letter written by the then Prime Minister, quotes the 1989 memorandum of the MoEF, the 1989 stipulations by the AERB for clearance, and finally with the MoEF’s letter dated 6 September 2001 in which it legalised the violations in the wake of 377.30 crores already spent on the project, feels confident that the environmental impacts have been taken care of and no violation of EIA stipulations have happened. In case of Coastal Regulatory zone (CRZ) clearance, it again validates the 1994 exemption given to the Koodankulam project.

The EIA reports for the proposed 4 other reactors in Koodankulam have used the EIA studies for Koodankulam 1 and 2 as base-line, which were prepared without a public hearing. Supreme Courts doesn’t find it worthy of objection.

Modifying the initial plan to take water from two nearby dams, construction of a desalination plant was started in 2006 in Koodankuiam. The petitioners had pointed out that the desalination unit would have its own hazardous environmental impacts and will also add to the overall pollution and hence had demanded a fresh EIA clearance. The court has said that desalination units are not listed under the 1994 EIA stipulations, so absence of such an EIA in Koodankulam is not a violation. Of course, the cumulative impacts also do not need any re-assessment then!

Similarly, the Supreme Court has brushed aside significant objections on CRZ clearance and post-factto legalization by TNPCB of the increased temperature of affluent water in Koodankulam. Under the heading ‘Sustainable Development and Impact on the Eco-System’, the verdict quotes elaborately from the Rolay Commission on Environment Pollution (UK, 1971), Stockholm Conference (1972), UNGA’s World Charter for Nature (1982), Rio Summit (1992), the UN MIllenium Declaration of 2000, UN Conference on Sustainable Development (June 2012) and so on, but only to conclude that “we have already found on facts that the KKNPP has been set up and is made functional on the touchstone of sustainable development and its impact on ecology has been taken care of following all national and international environmental principles” !

Larger Public Interests

Then the judges take it upon themselves to decide whether the claims of “smaller violations” of nearby population’s right to life under Article 21 of the Constitution should take precedence over production of energy, which is “of extreme importance for the economic growth of our country..to alleviate poverty, generate employment etc.” The judgement looks into various earlier cases of objections to ‘development’ projects on environmental and right to life grounds, and concludes that a balance between “economic scientific benefits” and “minor radiological detriments” has to be found. The pre-conceived notions of ‘development’ take over the judicial rigour and objectivity and in their hurry, the judges have done a grammatical faux pas: “Larger public interest of the community should give way to individual apprehension of violation of human rights and right to life guaranteed under Article 21″! We can over look the grammatical blunder of our judges, but what about terming the massive protests by thousands of people in Koodankulam, run for over 25 years in a thoroughly peaceful manner, as ‘individual apprehension’? Who is the ‘larger community’? Do the interests of the farmers, fishermen and poor people of India do not form the ‘larger public interest’?

The judges have gone ahead to claim that apprehensions of far reaching consequences of radioactive effects has “no basis”! The say: “Nobody on the earth can predict what would happen in future and to a larger extent we have to leave it to the destiny….Apprehension is something we anticipate with anxiety or fear, a fearful anticipation, which may vary from person to person.” The Court goes by the “expert opinions” of MoEF, EAC, TNPCB, Report of IOM, Report of Engineers India Limited, NEERI’s EIA etc and concludes that all expert bodies are unanimous that in their opinion KKNPP has fully satisfied all safety norms.

Justice Dipak Misra in his prologue emphasizes the need to “march ahead with life allaying all apprehensions with a scientific mindset accepting the nature’s unpredictability to survive on the planet earth on the bedrock of the doctrine – survival of the fittest”. He again goes on to describe how elaborate the DAE’s guidelines on nuclear safety are, and concludes that ‘all possible measures have been taken to avoid any kind of calamity’. He goes on to quote extensively from the IAEA’s 1994 Convention on Nuclear Safety and the Joint Convention on the Safety of Spent FUel Management and on the Safety of Radioactive Waste Management 1997, to which India is not even a signatory, to appreciate the “world wide concern for public safety”. He again quotes in extenso from the AERB’s post-Fukushima Safety Review of KKNPP. However, an unquestioned faith in the nuclear establishment about adequacy of these recommendations and the establishment’s sincerity to implement leads to plain judicial reassurances.

Justice Misra looks into proportionality of safety vis-a-vis the necessity of nuclear energy development. While accepting the need for ensuring safety for present and future generations, he holds that ‘generation of nuclear energy is a necessity in a progressive modern state’ and ‘promotion of development and protection of the environment have to be harmonized’. Besides other cases, Justice Misra cites the Narmada case and quotes that “In a democracy, welfare of the people at large, and not merely of a small section of the society, has tobe the concern of a responsible Government.”

In the final judicial directions, the judges have asked the NPCIL to file a report before the Supreme Court before the final commissioning, certifying that each and every aspect of safety including environmental impacts, have been taken care of. For the periodical safety maintenance and reviews, safety of the spent nuclear fuel during transport, radioactive discharge to the atmosphere, compliance with the 17 post-Fukushima recommendations, and adherence to the NDMA guidelines, the court has directed the NPCIL, AERB, MoEF, TNPCB and other concerned bodies ensure strict compliance, but has essentially reposed faith in their efficacy and sincerity. The Supreme Court has ordered that a Deep Geological Repository should be set up at the earliest so that SNF can be transported from the nuclear plant to the DGR.

Withdraw Criminal Cases Against Protesters: The Supreme Court has directed to withdraw al criminal cases filed against the agitators in Koodankulam and to restore normalcy and peace.

The Supreme Court’s verdict rests on three major premises: the judges’ belief in the necessity of the nuclear energy for India’s progress, their faith in the country’s nuclear establishment to perform this role, and the judges’ notion of the larger public interest and the apprehensions of small sections which should make way for the country’s progress. All three of these are immensely contested propositions. But not only have the judges given judicial sanctity to these contestable claims, but have also completely overlooked the Koodankulam-specific brazen violations of the government’s own norms, raised by the petitioners.

In retrospect, the struggling people of India would find approaching to the Supreme Court in such matters pointless, and counter-productive, as the courts themselves are part of the system which has failed to address the widening gap between the aspirations and lives of the deprived masses and the mainstream notions of ‘larger public interest’. Prayers before the judiciary on such matters ends up legitimising the same ‘experts’ and disastrous notions of progress that the people have been fighting against.

DOCUMENTS:

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Re-posted from DiaNuke.org

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Justice K. Chandru “A People’s Judge” Retires

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Myself . By T.V. Antony Raj

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Justice Chandru
Justice K. Chandru

In India and elsewhere, when a High Court Judge retires, it is usual for all the judges of the High Court would to assemble a meeting in the Court of the Chief justice and the Advocate General would deliver a farewell speech followed by a photo session, high tea and dinner in a five-star hotel. However, Justice K. Chandru, who served as a judge of the Madras High Court for the past sevens years, did not want this ritual farewell. In a letter to the acting chief justice R K Agrawal, dated February 8, 2013, Justice Chandru requested him not to order the farewell ritual for him as he would like to leave office quietly.

The last time a judge declined a farewell function was in 1929, when Justice Jackson told the Advocate General, “I have done my job; where is the question of a farewell for me?”

Friday, March 8, was the last day in office for Justice Chandru. He submitted a copy of his ‘voluntary declaration of assets’ to acting Chief Justice R K Agrawal. After returning to his chambers, he signed a few documents. From there he went to the press room and e spent a few happy moments with the journalists who had assembled there,  answering their queries.

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Justice Chandru on his way to MRTS station. — (Photo - Deccan Chronicle)
Justice K. Chandru on his way to MRTS station. — (Photo: Deccan Chronicle)

After leaving the court premises, he walked up to Sangeetha Restaurant across NSC Bose Road. A group of friends was waiting there, and he had coffee with them. From there he walked up to the Beach Station and boarded a suburban MRTS train bound for Velacherry.

Posted as an Additional Judge of the High Court on July 31, 2006 , Justice K. Chandru became a Permanent Judge on November 9, 2009. He had disposed of nearly 96,000 cases, both at the Principal Seat and at the Madurai Bench. He is altogether a different kind of Judge. Known for his simplicity, he shunned some of the accoutrements that usually accompanied a Judge. He disliked pomp and pageantry. He was a role model for others.

    • He dispensed with the practice of his duffedar carrying a mace while escorting him to the court and returning to his chamber.
    • He did not have a gun-toting personal security officer (PSO) beside him.
    • He did not have official servants at home.
    • He did not approve lawyers calling him “my lord”.

Justice Chandru would be remembered for several of his landmark judgments including a ruling that women could become priests in Hindu temples.

Regrettably, the websites of Madras High Court that carry the bio data of its judges has no links to details about Justice K. Chandru. For example, the page, “The Honourable Judges of the Madras High Court,” lists the name of 48 judges, but Justice Chandru’s name though listed does not link to any page with details about him. With his retirement, the strength of the Madras High Court has come down  to 47 judges while the sanctioned strength is  60.

A notice displayed at the entrance to his chamber declared:

“No deities – no Flowers
No one is hungry – no Fruits
No one is shivering—no Shawls
We need only best wishes”

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The Concept of Marital Rape Is Not Recognized in Indian Law

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Myself . 

By T. V. Antony Raj

“Rape is rape regardless of the relationship between the rapist and the victim. It can be a total stranger; someone you recognise by sight, but have never really communicated with; someone you know superficially, a neighbour or a colleague; a friend, a boy-friend or a former boyfriend; a live-in partner, or a former partner; someone you are married to or have been married to in the past.” – What is Marital Rape ? (http://www.blessedmember.com)

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Raped wife

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Criminal law considers rape as sexual assault usually involving sexual intercourse initiated by one or more persons against another person without that person’s consent. The act may be carried out by physical force, coercion, abuse of authority or with a person incapable of valid consent, such as being unconscious, incapacitated, or below the legal age of consent.

In every contention of rape, the absence of consent of the victim to have sexual intercourse with the aggressor is extremely important. Consent does not need to be conveyed, and may perhaps be implied from the perspective, and from the rapport existing between the individuals. However, the lack of protest does not itself constitute consent to have intercourse. Consent can always be withdrawn at any time. So any further sexual activity after the withdrawal of consent is rape.

Lack of consent may be a result of either forcible compulsion by the aggressor or an incapacity to consent on the part of the victim like the person asleep, intoxicated or psychologically vulnerable.

Generally, we come across the following  categories of rape: date rape, gang rape, incest rape, child sexual abuse, prison rape, acquaintance rape, war rape, statutory rape, marital rape, etc.

Some research literature may extend the term spousal/marital rape to include divorced/legally separated ex-spouses, or unmarried cohabiting partners. However, current state laws often treat rape by ex-spouses or intimate partners as different from marital rape, and legally equal to rape, by a stranger. However, it does not seem to be so in India. Three days ago, I saw this news in hindustantimes:

PTI
New Delhi, December 04, 2012

A man has been discharged by a Delhi court of charges of raping his wife on the ground that having sexual relation with his spouse, even forcibly, does not amount to “marital rape.” District Judge JR Aryan let off accused Hazi Ahmed Saeed, agreeing with his counsel’s submission that the Indian Penal Code does not recognise any concept of “marital rape.”

“Defence counsel rightly argued that IPC does not recognise any such concept of martial rape. If complainant was a legally-wedded wife of accused, the sexual intercourse with her by accused would not constitute offence of rape even if it was by force or against her wishes,” the court said.

The court remanded the case back to a magisterial court as rest of the alleged offences, including those of causing hurt, criminal intimidation and theft, for which the accused was charge-sheeted, were triable by a magistrate.

The case was committed to the district judge after the charge sheet was filed by the police as the offence of rape was tried by sessions court.

The woman had filed the case in 2007 alleging that after her first husband’s death, accused Saeed started visiting her and by expressing sympathy, he asked her to marry him.

She had told the court that she married Saeed in February 2006, but later she came to know that the accused had married her only to grab her property which was then sold by him and his four sons.

The police had said in its charge sheet that Saeed had maintained physical relations with the complainant after their marriage and it could be a possibility that those physical relations were against her consent and wish. (sic)

What a shame?

In a non-consensual sex offense, if the perpetrator is the victim’s spouse, we call it marital rape, spousal rape, partner rape, domestic violence, or sexual abuse.

Once widely condoned and ignored by law, international conventions now repudiate spousal rape and increasingly criminalize it. However, in present-day India, like in medieval Europe, a stranger can legally marry a woman with her parents’ consent and without hers. After getting married, she could no longer refuse to consent to sex. Her husband can force her to have sex with him at any time he has the urge since the society widely condones his wish, and the law does not consider it as an act of violence, but accepts it as a husband’s prerogative.

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Standing in a Woman’s Shoes

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By Prabha Sridevan

The Madras High Court has played a stellar role in the evolution of gender justice in its 150 years of existence, setting the trend for social change through its rulings.

Physical, social and economic vulnerability affects men and women differently. Social structures give automatic advantages to the male or result in undeserved disadvantages to the female. Unless there is a positive affirmation of a woman’s rights, her voice will not be heard. This affirmation must come from the courts. The Madras High Court has played a stellar role in the evolution of gender justice. On its 150th anniversary, it is fitting to recall this contribution.

THREE GROUPS

I have categorised the cases that the Court has dealt with in this regard into three groups — the pre-Constitution period, 1950-2000, and the 21st century — with the full awareness that any list of “my favourites” is liable to be criticised.

In the pre-Constitution period, when the right to equality and special provisions for women were not enshrined as law, we find in the Madras High Court a remarkable recognition of the woman’s right to property, to dignity and in fact a recognition of woman as just herself and not as an adjunct to man as father, husband or son.

As early as in 1864, in Chalakonda Alasani vs. Chalakonda Ratnachalam, the Court held that the rules applicable to a coparcenary for custody of the properties and the separate ownership of self-acquisitions were applicable to female members of a devadasi community living jointly. It was dealt with as if it was a family. Nowadays, the concept of what constitutes a family may no longer be based on marriage or heterosexual ties. From that perspective, this judgment is indeed very modern.

The right to dignity of a woman was seen as an indefeasible right by the Court. In Ramnath Zamindar and Anr vs. Doraiswami (1882), the claim to legitimacy by the son of a dancing girl was upheld. The Court empathised with her reluctance to expose herself to insensitive cross-examination. In Parvathi vs. Mannar (1884), the Bench held that the English law insisting upon proof of special damage in a case of libel against a married woman would not apply under the customs and social context of this country. In both cases, the Court looked at the issue “standing in her shoes.”

Does the husband have the right to beat his wife? Such a misconception is still prevalent. But in Emperor vs. Subbaiah Goundan (1936), the Court was clear that no husband had such a right, “… and wife-beating is not eo nomine one of the exceptions in the Chapter of ‘General Exceptions’ in the Indian Penal Code … We think it necessary to state in unmistakable terms that the learned sessions judge’s declaration of the rights of husbands in this regard has no foundation, so that no one may rely upon that in future as a justification for wife-beating.” Behind the wry humour, we can sense the Court’s pain.

In re Boya Chinnappa, our Court held that the prosecutrix in a rape case cannot be treated “as if she were an accomplice so far as her credibility is concerned.” Yet how often our Courts have even in later cases treated her exactly like that and she is repeatedly victimised during the trial!

In the 50-year period that covers the second group of cases, women were moving out of their homes to seek employment, and women were also moved out of their homes because of divorce or desertion. The courts had to deal with these issues.

But first, let us look at the right to dignity again. In re Ratnamala and Another(1962), the judge held “I must reiterate that the modesty of a prostitute is entitled to equal protection, with that of any other woman. The technique of such raids must be totally altered; otherwise, grave abuses of the law might enter into the very attempt to enforce the law.” Even today, this declaration that her right to dignity is non-negotiable needs to be reiterated!

In Srinivasa Padayachi v. Parvathiammal (1969), the question was whether the pre-nuptial settlement deed was valid. The Court said: “’Marriage may be a sacrament under Hindu Law, but that does not militate against the existence of a contract for the marriage.” The tone is so modern, affirming that the factum of marriage will not destroy the woman’s contractual rights.

Divorce undeniably renders a woman economically very vulnerable, and the Court set right the imbalance. In Soundarammal vs. Sundara Mahalinga Nadar (1980), the Court observed that the laws of divorce should not result in merely wrapping the wronged woman with decree copies of alimony but that the alimony awarded should compensate her for her loss and should be realised uninterruptedly and fully. In Ameer Amanullah vs Pedikkaru Mariam Beevi (1985), the Court held that the statutory obligation to provide maintenance to the wife and children transcends personal law and operates irrespective of caste, creed or religion.

By 1985, women in employment were commonplace, and views that a woman’s rightful place was in the hearth were no longer acceptable. But patriarchal bias still permeated public spaces. The Court held in Sivanarul v. State of Tamil Nadu that a woman cannot be removed from work because she was married. In Rukmani vs. The Divisional Manager, Marapalam Tea Division, the Court held that it was obnoxious and arbitrary to ask a woman to produce a “no objection” certificate from her husband to get a job. In R. Vasantha v. Union of India, the woman insisted that she shall not be excluded from employment in the night shift. The Court agreed, “This social change must necessarily have its impact upon the traditional perspectives concerning woman’s role and that must call for change in our laws … to advance the constitutional guarantees…” A true trendsetter.

A minor girl asserted that her father had no right to terminate her pregnancy. And the Court agreed in V. Krishnan vs G. Rajan @ Madipu Rajan. It is a significant decision for its admirable prescience in recognising, though tacitly, a girl’s right over her body without being trapped by extraneous questions. It said that the Constitution does not distinguish between minors and adults when it concerns fundamental rights.

In the Chidambaram Padmini case and the Meera Nireshwalia case, the very spaces that ought to be safe for a woman victimised her. In the former, the complainant was raped in a police station; in the latter, her home became a hazard. The husband, in collusion with the person who had bought her property, had termed her insane and confined her in an asylum with the help of the police. In both cases, the court showed its stern disapproval and awarded compensation.

Facing or prosecuting a matrimonial case is not easy for the woman. In Janaki vs. V. Sundaram, reminding the Family Courts about their role, the High Court held: “A starving wife cannot be compelled to face the trial. The very purpose of establishing a Family Court is to have a different atmosphere in regard to settlement of family problems. Family Court must instill faith and confidence in parties.”

This is live equality, not pedantic equality that treats two unequal persons as equal.

TWENTY-FIRST CENTURY

Now we move to the 21st century when women are turning agents of change and the Court has facilitated the process. Two women claimed that they must be appointed as members of a public trust in Lalitha Sundari and another vs. Kedarnathan (2002). The Court relied on CEDAW (Convention on the Elimination of All Forms of Discrimination Against Women), to which India is a signatory and held that there can be no discrimination against women regarding appointment to public office, and upheld their claim.

The wife who was not allowed to enter her marital home contended that it was a shared household and in Vandana vs Srikanth (2007), the Court proactively construed the concept of a “shared household” and secured her space. It was a nascent Act, and a narrow interpretation would have defeated the purpose of the enactment. And in M. Palani vs Meenakshi (2008) the Court held that maintenance can be claimed by a woman in a domestic relationship, based on consensual sex regardless of its duration. The glass ceilings in the religious space are the hardest to shatter. In Pinniyakkal vs. District Collector and ors(2008), the woman said that she had the right to be a pujari (priest) in a temple and the High Court protected her right, observing “The altars of the God must be made free from gender bias.”

The Courts did not forget the homemaker either. In National Insurance Co. vs. Minor Deepika and others, the High Court put an economic value to the work done by the homemaker. It invoked the CEDAW principles affirming her right to dignity. Turning to working women in the workplace and their right to be free of sexual harassment, the Court, in Srinivas Rajan vs Director of Matriculation Schools, said, “The Special Committee which enquired into the allegations made by the women staff … had clearly forgotten the real import of the Vishakha case.” A woman who has been widowed is traditionally expected to retire from public space but in R. Malathy vs. Director-General of Police, the woman fought for her right to continue in police service, and she succeeded. This judgment traces the history of injustice inflicted on widows. One sees that in this period, the Court has looked at gender equality from many angles.

True, the woman has not always succeeded. But as we celebrate the 150th year of a great High Court, I wish only to record the triumphs (certainly not all of them) in this humble tribute. There have been failures, but the time to dissect them is not now.

(Prabha Sridevan, a former Judge of the Madras High Court, is Chairperson, Intellectual Property Appellate Board.)

Reproduced from The Hindu, September 21, 2012.

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Family Court Disputes Taken Away From Honourable Justice K. Bhakthavatsala

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“High Courts and the Supreme Court are courts of principles. The judges should not speak anything beyond the principles of a particular case. Let us not give lectures to the society. The problem is sometimes we judges impose our own values; our own likes or dislikes on the society.” – Chief Justice S H. Kapadia

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All family court disputes, along with child custody and guardianship matters, got moved from the court of Honourable Dr. Justice K. Bhaktavatsala and Justice B.S. Indrakala of the High Court of Karnataka to the court of justices K.L. Manjunath and V. Suri Appa Rao. Official sources said the changes should come into effect from September 10.

Dr. Justice K. Bhakthavatsala
Dr. Justice K. Bhakthavatsala

This move transpired after the outrage triggered among women lawyers and activists over a number of oral comments expressed by the justices.

Recently, women advocates headed by Ms. Pramila Nesargi, a well-known senior attorney and former Chairperson of Karnataka State Commission For Women gave a representation to Chief Justice Vikramajit Sen. They expressed their concern and objection to the remarks articulated especially by Justice Bhaktavatsala.

A few days back, in response to the uproar, Justice Bhaktavatsala conveyed his displeasure regarding the reports showing up in various sections of the media with regards to the oral observations made by him in the courtroom. He alleged his comments were “twisted out of context” and that he never intended to condone physical violence against women.

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Are His Judgements Justified?

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Myself . By T.V. Antony Raj .

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“High Courts and the Supreme Court are courts of principles. The judges should not speak anything beyond the principles of a particular case. Let us not give lectures to the society. The problem is sometimes we judges impose our own values; our own likes or dislikes on the society.”
– Chief Justice S H. Kapadia

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The responsibilities of judges to the public begin and end with their evaluation of the current law and its precise usage, without having to preach their very own beliefs, philosophies or preferences.

Honourable Dr. Justice K. Bhaktavatsala of the High Court of Karnataka seems to have overlooked this advice. Even so, some hail him as a judge clearly wearing a different judicial cloth.

Whereas other judges will definitely perceive an abusive and irresponsible marriage as good enough factor for permitting a divorce, he believes that it is his moral duty to play the role of a peacemaker in the matrimonial cases which often come before him.

Justice K. Bhaktavatsala Says,  “Girl Under 21 must Get Parents’ Consent for Marriage”

Source: High Court of Karnataka

Last year, on February 2, 2011, Avinash, a resident of Bangalore, eloped with a minor girl to Krishnagiri. Five days later, the girl’s parents lodged a complaint of kidnapping against Avinash with the Wilson Garden Police, Bangalore.

Avinash too filed a habeas corpus plea. In his petition, Avinash said that he knew the girl, Ms. Sanghavi, for two to three years and they were in love for two to three months. However, their parents did not approve their marriage. Therefore, they left Bangalore and got married on March 2, in a Temple at Tali Village, Tenkanakote Taluk, Krishnagiri District, Tamil Nadu. When he came to know that the father of the girl lodged a missing complaint with Wilson Garden Police Station at Bangalore, he brought the girl to the Police Station. The custody of the girl was given to the girl’s father and her maternal uncle after they agreed to allow him to speak to the girl twice daily, but in vain. On April 4, 2011 he along with his friend Ajay went to the house of the girl’s maternal uncle inquiring about the whereabouts of the girl for which the maternal uncle abused him and threatened with dire consequences.

This Writ Petition (HC) filed under Article 226 of the Constitution of India, praying to issue a writ or order in the nature of habeas corpus directing the respondents to produce the corpus of the detenu Mrs. Sanghavi came up for hearing before the bench of Honourable Dr. Justice K. Bhaktavatsala and Justice K. Govindarajulu at the Karnataka High Court.

Sri K. N. Puttegowda, learned counsel appearing for the father of the girl, submitted on February 4, 2011 that Avinash, the petitioner kidnapped the girl, who was a minor. He alleged that on March 3, 2011, the petitioner had not completed the age of 21 years and therefore the petitioner’s claiming that the girl was legally his wedded wife, is not correct. He also submitted that it was the third love affair for the the petitioner.

On May 12, Honourable Dr. Justice K. Bhaktavatsala and Justice K. Govindarajulu pronounced judgement on the case. Here are some excerpts from this judgement.

6. The girl, who is present before us, submits that she was studying II Year PUC (2010-11) in NMKRV College, Jayanagar, Bangalore, and on 4.2.2011 when she was going to the College, the petitioner, who is friend of her brother, kidnapped and took her to Tamil Nadu and she did not marry the petitioner and she is happily living with her parents. 

11. We have seen many cases of run away love marriages and untold misery and hardship of the parents of the girls. All the love marriages are not successful. In the event of failure of the love marriage of the girl, it is the girl and her parents have to suffer for their life long. The girls, later on, realise their mistake that they were hasty in love marriage and repent at leisure.

12. … In our opinion, the girls below the age of 21 years are not capable of forming a rational judgment as to suitability of the boy, who is in love. It is relevant to mention that those girls, who are suffering from harmonal imbalance easily fall prey to the boys and fall in love, marry and repent at leisure. The parents of the girl are interested in selecting a suitable boy and see that the girl leads a happy married life. … Hence, We suggest that in the case of love affair of a girl, who is below the age of 21 years, there shall be a condition that the parents of the girl should approve the marriage, otherwise such marriages shall be declared void or voidable. 

13. Now, We refer to Section 361 of the Indian Penal Code. According to Section 361, whoever takes or entices a girl, who is under the age of 18 years out of the keeping of the lawful custody of such minor, without consent of such guardian, is set to kidnap such minor from lawful custody. The offence under Section 361 of the Indian Penal Code is punishable under Section 363 of the Indian Penal Code. From the above facts, We notice that the petitioner has kidnapped the girl, who was minor. It is an offence under Section 361 of the Indian Penal Code. We cannot close our eyes when it is brought to our notice the offence committed by the petitioner under the Penal Code. Therefore, We have to direct the Police to apprehend the petitioner, who is present before the Court, and he shall be dealt with, in accordance with law.

14. In the result, the Petition fails and the same is hereby dismissed, imposing costs of `10,000/-, which amount shall be deposited by the petitioner with this Court, within a month from today. Statement of Ms. Sanghavi made before us shows that the petitioner has kidnapped her. Hence, the Wilson Garden Police is directed to register a case against the petitioner. Further, the Wilson Garden Police is directed to apprehend the petitioner, who is present in the Court, and he shall be dealt with, in accordance with law. …”

Justice K. Bhaktavatsala Says, “Unmarried Lawyers Are Unfit to Argue Matrimony Cases”

Source: bangaloremirror.com

A couple, both software engineers, after their marriage lived together for only a few months. They have a daughter who now lives with the mother.

On March 9, 2010, a family court rejected a divorce plea filed by the husband and advised the couple to forget the past and minor differences and live happily. However, the husband filed another appeal.

In September last year, a division bench said that “learned counsel for both parties have submitted that, in spite of granting enough time, they could not settle the matter amicably and, therefore, this matter may be heard on merits”.

On August 9, 2012, the case came up before the division bench of Justice K. Bhaktavatsala and Justice B.S. Indrakala. A young woman advocate took up the case on behalf of the estranged wife while the husband had taken the services of a senior designate – advocate M.T. Nanaiah.

While the woman advocate was citing the allegations against the husband, Justice Bhaktavatsala stopped her midway and asked, “Are you married?”

When she replied in the negative, the judge said, “You are unfit to argue this case. You do not know real life. Why are you arguing like this? He is your (client’s) partner, not a stranger. Family matters should be argued only by married people, not spinsters. You should only watch. Bachelors and spinsters watching family court proceedings will start thinking if there is any need to marry at all. Marriage is not like a public transport system. You better get married and you will get very good experience to argue such cases.”

The judge then asked the other advocate who was also appointed on behalf of the wife whether he was married. He said he was. The judge said it would be better if he argued the case.

The wife then said she was willing to go with the husband immediately. Even so, the husband’s advocate said they would rather live together for three months and then decide if they were compatible. The judge said he would have none of it, and asked the husband and wife to go out for lunch together and return immediately.

The judge said, “We feel very bad when such cases come before us. Think of the child and that will be the link between you both.”

He told the husband, “Take your wife out. Take her out for a coffee or better for lunch. Will you take her to Capitol Hotel?”

Then he turned to the wife and said, “Go with him.”

He asked them to speak to each other and solve their differences, and come back after lunch. He then asked, “You want money? I will pay for the expenses.”

When the couple came back after lunch, the judge asked them how much the bill was and who had paid it. The husband said he paid the bill of about Rs 500. The wife said she was willing to pay the amount to her husband. This indicated that they had not resolved their differences.

The wife said her husband wanted her to quit her job but she could not at this point of time as she was working in the US and was on leave for three months. The husband’s counsel insisted that they had to wait for three months before living together again.

Justice Bhaktavatsala said to the couple, “You will be happy together. In every family there are differences. You have a young daughter and both of you are software engineers. But if you separate, don’t think you will have a great time outside. Nobody will respect both of you. I have seen the case of two doctors who divorced. Both did not get good partners later. You will repent at leisure.”

The court ordered that the two appear again in court the following week along with their daughter.

Justice K. Bhaktavatsala Tells Abused Wife to ‘ADJUST’

Source: bangaloremirror.com

A 37-year-old husband approached the High Court, stating that his wife had deserted him and had taken their two sons along with her. On August 17, both the parties were asked to be present before the court on August 31.

Both parties presented themselves before the bench of Justice K. Bhaktavatsala and Justice B.S. Indrakala on August 31,

The 28-year-old wife stated that her husband used to beat her and had driven her out of the house.

Justice Bhaktavatsala went on to advise the woman. He said: “Women suffer in all marriages. You are married with two children, and know what it means to suffer as a woman. Yesterday, there was a techie couple who reconciled for the sake of their child. Your husband is doing good business. He will take care of you. Why are you still talking about his beatings? I know you have undergone pain. But that is nothing in front of what you undergo as a woman. I have not undergone such pain. But madam (Justice B.S. Indrakala) has.”

When the woman’s advocate produced photographs showing her swollen face, Justice Bhaktavatsala said, “You have to adjust. Are you just behind money? There is nothing in your case to argue on merits. You have to give him a divorce or go with him. Have you read about actor Darshan. He spent 30 days in jail after beating his wife. But they are living together now. What is on your mind and what is on your agenda?”

The court directed the couple to go out and talk to each other. The man was told to speak to his son, and the judge asked, “What have you got for your son?”

When the boy refused to go near his father, the judge asked the woman, “Have you told him not to speak to his father?”

The woman replied that her husband had never spoken to their son. Therefore, the child feared him.

The court adjourned the case to a later date.

The Honourable Dr. Justice K. Bhaktavatsala of the High Court of Karnataka seems to be an enigmatic person indeed. NOW, YOU BE THE JUDGE…

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Raised voices against Internet censorship

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The protest against Internet censorship was organised by the Free Software Movement of Karnataka (FSMK), in collaboration with the Software Freedom Law Centre. The performances, singing and short speeches delivered by students and bloggers culminated in a candle light vigil here.

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Raised voices against Internet censorship

STAFF REPORTER, The  Hindu

Students and IT professionals performing a skit against the ‘clampdown on freedom of speech’ online. Photo: V. Sreenivasa Murthy
The HinduStudents and IT professionals performing a skit against the ‘clampdown on freedom of speech’ online. Photo: V. Sreenivasa Murthy

It’s a regular day at the Parappana Agrahara prison in Bangalore. The media has arrived to interview high profile criminals held there. Among politicians accused of land grabbing and corruption, and industrialists, is a young boy. When asked what he had done to land up there, he says: “I blogged.” The media and other “high-profile” criminals scoff at him for not being “criminal enough”.

This was the plot of one of the skits performed outside Town Hall, where a young, energetic crowd gathered to protest against the “clampdown on freedom of speech on the Internet”.

Over 100 people participated in the protests, including IT workers and students from engineering colleges here.

The protest was organised by the

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Sri Lankan woman faces beheading on witchcraft charge

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The daily Okaz reported that a Saudi man had complained his daughter had ‘suddenly started acting in an abnormal way and that happened after she came close to the Sri Lankan woman’ in a large shopping mall in the port city of Jeddah.

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Accused of witchcraft: A Sri Lankan woman faces being beheaded after allegedly casting a spell on a 13-year-old girl during a shopping trip in Saudi Arabia (file picture)

 Mail Online, April 19-Accused of witchcraft: A Sri Lankan woman faces being beheaded after allegedly casting a spell on a 13-year-old girl during a shopping trip in Saudi Arabia

A Sri Lankan woman has been arrested on suspicion of casting a spell on a 13-year-old girl on a shopping trip in Saudi Arabia.

She may face the death penalty as the Middle Eastern country is known to behead convicted sorcerers.

Police spokesman Mesfir al-Juayed confirmed yesterday that details of the woman’s arrest published in local media were correct.

The daily Okaz reported that a Saudi man had complained his daughter had ‘suddenly started acting in an abnormal way and that happened after she came close to the Sri Lankan woman’ in a large shopping mall in the port city of Jeddah.

‘He reported her to the security forces, asking for her arrest and the specialised units dealt with the…

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Work continues at Kundakulam Nuclear plant as does police crackdown on protesters

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Why this Kolaveri?

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KoodankulamNuclear Power Project site, commissioning expected by the end of May

Jeemon Jacob
Thiruvanthapuram, 2 nd April 2012

Work at the Koodankulam Nuclear Power Project site continues to be on a fast track, and according to sources the plant will be ready to commission within eight weeks. According to an official working at Koodankulam Nuclear Power Project site, the commissioning of the plant is expected by the end of May. Scientists and officials had reviewed the progress of the project last week. “Our scientists and technicians are working over time and we will be able to complete the project in time,” said the official who wished to remain anonymous.

Meanwhile, the government crackdown on anti-nuke protesters continues. The Madurai Passport Officer has directed PMANE convener Dr SP Udayakumar to surrender his passport as a criminal case is pending against him. On Friday 30 March, officials from the intelligence bureau…

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