Tuesday, July 22, 2008

Civil Disputes and Police interventions

What is the face of Police that is familiar to you? Do you see it as the protector against wrong and a punctilious enforcer of law and order? Or, you have been exposed to only an ugly corrupt countenance of the police force and hence would want none of it for resolving your pressing problems with a brazen transgressor of law? The Hindu mythology assigns to Vishnu the role of a cosmic protector, who constantly participates in worldly affairs, ensuring that all is well. Outside the ring of Agamic pantheon of Hinduism, lies the rural tradition of worshipping grama devadai, which is called kaval deivam. Along with Karuppasamy or Muniswaran or Sudalai or the formless Nadukkal, you will find a stony police man also, with a long moustache but having a kind face. Worship is offered to the statue of police in so many villages. From a protector, police has unfortunately become a symbol of oppression and protector of the bully and the villainy rich. The more fearsome he looks the closer to reality he is.

Look at the scene of crimes in India. Most of them have property disputes as the genesis and to a lesser degree, are matrimonial disputes including infidelity or promiscuity. If the police are involved at the earliest stages of property disputes or matrimonial discord, there is a chance of abatement of factious differences and defusing fulminating volcano of conflicts. Police know their worth and the significant role that they could play. A trident could be a protective weapon, if it is wielded to protect but a veritable killer when it is brandished to offend. If the police receive a complaint of land dispute or matrimonial woes of demand of dowry or other forms of cruelty and act with responsibility, we would have half as fewer crimes, given the natural propensity of our folk to assign a kavalkaran (protector) status to the police. Pathetically, we have systematically degraded every institution that ought to protect us. It is now the proverbial fence eating up the crops.

You will find a petition to the police regarding property dispute will be referred to civil court without the police undertaking the investigation, when the aggressor is a bully who has taken good care of the police for his show of apathy. The complaint would go without being registered. When should the police intervene in property disputes and when should he refer the parties to seek for adjudication before civil courts? What type of complaints should be registered as FIR and when could the police receive the petitions with advice to resort to some other agency? When could the police resort to arrest after receiving the complaint and what circumstances would be just, not to indulge in arrest even though a complaint of commission of cognizable offence is made? Recently all these questions came to be raised before the Madras High Court when an application for anticipatory bail was presented by an accused apprehending arrest in a land dispute involving crores of rupees. The Court pulled up the city crime branch police for making pretenses of receiving complaints under the guise of inquiry but not registering cases. The Court noted that enquiry has a predictable course, when the police would initiate a conciliatory poser that would soon degrade to coercive katta panchayat.

What has brought us to this unseemly pass? Many of the decisions of the Supreme Court and the High Courts on the status of complaints and duty of registration of complaints go unnoticed. Dealing with section 154(1) of Cr.P.C. the Supreme Court said in Mohd Yousuff (2006) that registration of FIR involves only the process of entering the substance of information and in Ramesh Kumari (2006) it pointed out that genuineness or credibility of the information is not a condition precedent for registration of a case. In Lallan Choudhary (2006), the Court again said that when a complaint of cognizable offence is made, the police has not option but to register the case. In Upkar Singh(2004), the Court had earlier clarified that while registration of two complaints from the same party on the same occurrence could be bad as making possible improvements and deviation from truths, registration of complaint and counter complaint from rival parties relating to the same incident is not barred, it they would lead to unraveling the truth. In All India Institute of Medical Sciences Employees Union case (1996) and in Aleque Padamsee (2007) the Court has explained the modalities to be adopted as set out in Section 190 read with Section 200 of the Code of Criminal Procedure when the police officials fail to register FIR.

Alongside these pronouncements, see how the courts are approaching the position of a trespasser and what relief he could get in civil courts. As early as 1961, Justice Veerasamy (as he then was) said in Alagi Alamelu Achi that a trespasser in possession cannot be protected by an order of injunction. In 1991, Justice P.S.Mishra (as he then was) said, in the context of a government initative to remove the hutments that had come up along the seashore that even a trespasser is entitled to protection under Article 226 of the Constitution. In 2004, a 3 member Bench of the Supreme Court said that a trespasser in “settled possession” is entitled to protection until evicted by due process of law. You will notice that different branches of law, the police understanding and public perception of what the law is, are pulling in different directions. Perspicuity, an essential attribute of law, is lacking in the present scenario. The High Court has in a recent case, appointed a committee consisting of high ranking police officials to go into these problems of coping with civil disputes through the instrument of police machinery. The report and the court’s decision on the issues would be most significant. Who is a trespasser? What is settled possession? What are Court’s powers? When can police intervene and what is the scope of investigation? Circulate your own views on this subject and sharpen your ears to listen. It is wise not to be distracted by side stories that have germinated from this case.

Thursday, July 17, 2008

Share your thought for a new legislation

A popular English daily lists out several strange laws legislated in efforts to maintain law and order in diverse legal regimes across the world. They range from legislation that makes illegal for chicken to lay eggs on Sundays to legislation that require the permission of a husband by a wife to wear dentures. The constant refrain has always been that there are a lot more laws than necessary. A country that is regulated by rule of law is not necessarily a country that has enormous laws. The efficacy of enforcement mechanism alone makes the difference. We have laws to prevent crimes; we have laws to punish practitioners of untouchability; there are laws that protect women and children. All of them have not guaranteed a crime free society. They have not effaced the scourge of untouchability. Our women cannot still walk on the roads in hours of darkness without fear. Our children do not lead lives of frolic. Many of them slave under hard labour and are the breadwinners for their families even if they get but just a slice of bread to bite into.

In a country where there is a population of more than a billion, you may think that it is a country that abounds in fertile couples. The truth is that the problems of infertility are confined not to anyone particular race, religion or country. It is prevalent all across the globe. The WHO estimates that 8-10% of the population has problems of infertility. The science of medicine has alleviated the malady by Assisted Reproduction Techniques (ART). In Vitro Fertilization (IVF) is a procedure that helps couples that are unable to conceive a child in a regular manner by fusing the sperm from the male to the egg of the female to fertilize in the laboratory through what is called in vitro (literally, “in glass”) procedure and implant the fertilized egg in the womb of the female. In cultures that recognize the institution of the marriage itself as necessitous to procreation and perpetuation of the clan, infertility could be a ground for break down of marriages. It is commonplace that the slur has a gender bias, so that a woman that does not become pregnant becomes the target of harassment, even apart from the insistent dowry demands that might mar the harmony of the wedlock. Times when the small family norm was not yet a national population policy, it was possible to adopt children from within the immediate family circle, when the couple was infertile and find fulfillment of their wants. Now with small families becoming a reality among the population living in small towns and villages also, the practice of adoption is not resorted from within family members. With the advancement of medical techniques for assisting infertile couples for increasing chances of pregnancy, the advantages are too obvious to be missed. The right to have a child is not merely a nature of personal preference but an issue of social good, for the society benefits by fulfilled families.

Fertility clinics are around in every corner in major cities and the persons that run them have booming lucrative practice. Surprising, there are no laws in India to regulate this practice. In UK the passing of Human Fertilization and Embryology Act in 1990 saw the establishment of the Voluntary Licensing Authority and later the Interim Licensing Authority whose main role was to monitor the developments in Assisted Reproduction. The Act aims to regulate research on embryos, to protect the integrity of reproductive medicine and to protect scientists and clinicians from legal action and sanction. The UK Legislation has stood as a benchmark piece of legislation and used as template for legislation in other jurisdictions. Science and technology move faster than laws and even the British enactment is found to be insufficient in several areas such as cloning and several biomedical research that raise important ethical considerations in the realm of manipulation of genes to create ‘designer babies’. The legalization of same sex marriages import the idea of perpetuation of family only through techniques of surrogate parenthood either from a donor sperm outside the realm of marriage or from a person within the boundary of marriage to a surrogate parent outside the marriage. What should be the money to be paid for the attendant medical care for bearing the child may be a crucial question to be addressed.

In India, the regulation of fertility clinics is sought through stringent legislation which is reported to be in the post -draft stage and the government is also considering notification of strict guidelines and their mode of enforcement to regulate the functioning of fertility clinics till the law is enacted. Instances are reported when couples who have gone to fertility clinics, have realized to their shock that the sperm or egg of one or the other was not from one of the couples themselves and abortions are resorted due to complications arising from DNA mismatch. The new legislation or guidelines, it is reported, would enable even a single woman who wishes to have a child without marriage to be impregnated by IVF techniques. The child that may be born will have an entry of the mother in the Birth and Death Registration Act but the father’s name may not be disclosed, without stigmatizing the child as illegitimate. The legislation may even favour childless widows or widowers to help them secure a child through a donor sperm or through a surrogate mother. It will make possible gays and lesbians to beget children. Along with this legislation, enactments relating to marriages, adoption, registration of births and deaths, abortion, crimes, etc, will have to be drastically amended. All these changes cannot come about through a legislative exercise unaided by a healthy debate from the knowledgeable sections of the society.

Lawyers have played significant roles in the past in fashioning legislation by their legal skills and their knowledge of the needs of the society. Here is a chance for the legal community to address all these issues from legal, social, psychological and ethical perspectives. The round table is being readied now. Do you have views to express?

Tuesday, July 08, 2008

Oh Men! Don't compete with women for motherhood!

The world is not any the less equal only because men and women are made differently, - the ways their biological differences make them think, look and behave. These differences themselves have assigned to them dissimilar roles to play in the society. So long as the physical prowess helped men dictate the primacy of their actions, they could claim superiority. But men are challenged in every field, in studies, in professional skills, in the study of science, in expressions through arts and what have you. However, men have always held their own in the arena of sports; women in the pride of bearing children. They never contested each other in these fields alongside but see now, a man has challenged womanhood even in the act of creation. Not just novelty this, but scary!

Thomas Beatie was born female, underwent surgery and took hormone treatment to become a male; kept her reproductive organs, got artificially inseminated by a donor sperm, became pregnant and has delivered of a baby on 29th July at Los Angeles. The baby is a girl, we are told, but wait till a decision is made if the child will remain as a girl or whether there will be a sex change. In reality, no one undergoes sex change for the fun of it. Cases of infants born with ambiguous genitalia are not common but nor are they rare. Ambiguous genitalia are physical anomalies in which the genitalia are not clearly identifiable as male or female. They are often detected at birth and are a sign of intersex. Of the 3 to 4 million children born annually in the United States, approximately 1 in 2000 are reportedly born with ambiguous external genitalia (thus approximately 1,500 to 2,000 such children yearly). Estimated 100-200 pediatric surgical sex reassignments are performed in the United States annually, mostly during infanthood. Official statistics are not available for India but it is believed, there are at least 10 lakh people in this category.

The case presents strange ethical questions. It just does not stop with what a man/woman wants to do with his/her body. (S)he lets his/her decision impinge on the psychological upbringing of the child, who has no scope for any form of participation in the decisional process. The child will have to grapple with the enigma whether the person who gave birth to her is her mother by the fact that she was delivered through her loins or a father because, he looks and carries his identity in the society only as a male. There is no clear cut medical opinion whether physicians should perform sex re-assignment surgery (SRS) on Infants with ambiguous genitalia. The American Academy of Pediatrics published guidelines supporting the view that such a child could be raised either as a male or a female depending on the nature of surgery to be performed in infanthood. This has also been strongly challenged by many academicians and even the consent obtained from parents for performing surgeries on children are contested on the grounds that practitioners obtain consent on 1) the false aura of urgency; 2) the failure to impart complete and accurate information; 3) the oppressive secrecy in which parents are advised to not discuss the situation with others and to particularly withhold all information from the child; 4)the failure of physicians to reveal the uncertainty of the outcome; and 5)the failure to account for the child's "right to an open future" in the decisional calculation.

Beatie made a conscious choice to live like a man, underwent a surgery and married a woman. He asked the surgeon to retain the ovaries and uterus. The doctor obliged. There are no laws to regulate this practice. Patient autonomy in India is never predominant and medical paternalism, leaving the doctor to decide what is best, gains normative acceptance. Perhaps, what Beatie did in USA will not be replicated among the Indian male or female, at least not in the near future and doctors in India would not have done what an American doctor chose to do or not to do. But follow the winds of change. There have been odd instances of transgender persons occupying positions of political power – Shabnam Mausi became Member of Parliament from Sohagpur in Madhya Pradesh in 2000 and Kamla Jaan was elected Mayor of Katni in Madhya Pradesh in 2000. In fact, in the case of Kamla Jaan, in August 2002 the Madhya Pradesh High Court invalidated her election on the grounds that a eunuch is “essentially male” and therefore cannot contest from a seat reserved for women. The court, in effect, did not recognise a person’s right to choose his or her gender identity. But traditional Hindu law and Muslim law accorded to them status to inherit the property and be a propositus to form a fresh stock of descent. The MP High Court might have committed an egregious error. The case is pending before the Supreme Court. In 2005, the Central government introduced a category ‘E’ in passport application forms where ‘E’ stands for eunuch. But transgender people are not satisfied with this. The better option would have been a ‘T’. They are sensitive to the stigma that words such as eunuch bear and do not want to be addressed thus.

In the past 10 years concern about the transgender community has become widespread owing to the fear of the spread of HIV/AIDS. Since the hijra/kothi community has been found to engage in sex work, numerous NGOs have mapped them as “vulnerable population” for HIV/AIDS intervention projects. In its 172nd report, the Law Commission, chaired by retired Justice Jeevan Reddy, recommended that Section 377 of the IPC be repealed. The recommendation, however, was made in the context of a redefined law on sexual assault to replace the old law on rape. The Department of Social Welfare in Tamil Nadu has passed a G.O. in December 2006 with recommendations to improve the living conditions of aravanis. The G.O. strongly favours counselling as a means to deter families from disowning a transgender child. It also recommends counselling for children with behaviour changes in schools, for which teachers need to be specially trained. The G.O. clarifies that there is no ban in admitting transgender persons in schools and colleges and that no discrimination should be shown against such persons on account of their sexual identity. The G.O., however, is yet to be implemented but the welfare board set up by the State promises an opportunity to put these steps into practice. An important recommendation made by the jury following the December 17 public hearing was that cases against transgender women must be handled by women police alone to avoid sexual harassment in police custody. The jury also recommended that transgender women be protected under the Tamil Nadu Prohibition of Eve-Teasing Act, 1998. It is also suggested that the Board of Film Certification should curb derogatory portrayal of the transgender community in movies and television serials.

All these initiatives, important as they are, shall not take the Indian community to tread the adventurism of their US counter-parts and doctors that spells disaster to off-springs’ psychological upbringing. Gillette blade tempts a man in an ad with ogling bevy of girls to signify what a smooth shave could help achieve. Don’t give in yet! Children will least doubt in whose laps they would want to be cradled. A man is just no competition to a woman for motherhood.

Sunday, July 06, 2008

The several Avatars

Somehow we allow ourselves to be driven in our fancies about what we shall be doing by following the lead actors in the tinsel world of cinema. They have media and money at their command to capture the public eye. Even in a world that has mechanical lifestyles, with acquisition of wealth being the prime motivation, entertainment has been a healthy distraction. The philosophical theories that viewed human beings only as instruments of production and the history of mankind as a history of class struggles take a beating with the growth of entertainment industry that offers a striking proof that beyond hard labor and exploitative traits, the society creates temporary illusions that all is well around us. The hero’s girl is our girl; his wealth is our wealth; his songs are our songs; his happiness is our happiness – all at least for those 3 hours.

A popular movie captures the man in 10 avatars. He beat the earlier showing of another man in 9 different roles. There have been double roles, three’s and four’s also. Imagination has caught up with others to better this man. Suddenly a TV channel proclaims that their lead lady will appear in 14 different roles exhibiting 14 different traits. Yet another film proclaims that in one song sequence, the hero will adopt 20 different styles. The histrionics of individual performances get their sheen only by the aid of technology that fools the eye. Without technology, without fooling, several persons perform several things at the same time, don several roles all their lives and make the lives rich for themselves and for others.

An Ashtavadhani performs eight different acts at the same time. Have you witnessed these shows anywhere? Some body will be reciting a poem and asking a question which stanza of the Kural it was. A person in the audience will ask a question on science. Yet another will strike a bell in periodical intervals. Some person will be scratching his nose. One will be singing a song. The performer will himself be giving a speech on some topic and engaging in making knotty designs with a rope. At the end of it all, the performer will keep trail of every happening in the room. Recall what everyone was doing. He will not walk away with a boast that only he could do. He will assure you that human mind and body have immense capabilities and with training, it will be possible to replicate his fetes by everyoneelse also.

There is a good reason to believe in our own abilities to do extraordinary things. See how some judges (only some!) hear hundred cases a day, suffer long and short arguments, deliver judgments, advise lawyers to keep cool when they fight, attend evening functions and make speeches, read up case papers at home burning the midnight oil and still turn up cheerful in courts. Many lawyers turn out remarkable work. They play a caring head of the family; at the office, they counsel clients, make the pleadings, type them without the help of any typist, pin and stitch dockets, bank the money, do the driving, argue, fight and do umpteen skilled activities through out the day, each of which activity will be full time avocation for many an individual. Our own ladies have learnt the art of multitasking. From minding the children at school, to investment decisions, to taking care of the households, their task is stupendous. We take several avatars all the time. Only that we don’t apply grease and paint; we don’t have arc lights to capture our histrionics.

All this multitasking abilities shall not be for all times. There are those who claim that they are less efficient, due to the need to switch gears for each new task, and the switch back again. They are more complicated and thus prone to stress and errors. They are crazy and in this already chaotic world, we need to reign in the terror and find a little oasis of sanity and calm. Lawyers and judges take on problems of others all the time and they call for qualities of emotional distancing from their problems without being indifferent. Here are a few tips that Leo Babauta, a Zen philosopher, suggests without claiming copyrights for its reproduction:
First set up to-do lists for different contexts (i.e. calls, computer, errands, home, waiting-for, etc.) depending on your situation.
Have a capture tool (such as a notebook) for instant notes on what needs to be done, things to be remembered. (Have you wondered at some lawyers, who will pop out a small note book from their shirt pockets to give you the case law that you want?)
Have a physical and email inbox (as few inboxes as possible) so that all incoming stuff is gathered together in one place (one for paper stuff, one for digital).
Plan your day in blocks, with open blocks in between for urgent stuff that comes up. You might try one-hour blocks, or half-hour blocks, depending on what works for you. Or try this: 40 minute blocks, with 20 minutes in between them for miscellaneous tasks.
First thing in the morning, work on your Most Important Task. Don’t do anything else until this is done. Give yourself a short break, and then start on your next Most Important Task. If you can get 2-3 of these done in the morning, the rest of the day is gravy.
When you are working on a task in a time block, turn off all other distractions. Shut off email, and the Internet if possible. Shut off your cell phone. Try not to answer your phone if possible. Focus on that one task, and try to get it done without worrying about other stuff.
If you feel the urge to check your email or switch to another task, stop yourself. Breathe deeply. Re-focus yourself. Get back to the task at hand.
If other things come in while you’re working, put them in the inbox, or take a note of them in your capture system. Get back to the task at hand.
There are times when an interruption is so urgent that you cannot put it off until you’re done with the task at hand. In that case, try to make a note of where you are (writing down notes if you have time) with the task at hand, and put all the documents or notes for that task together and aside (perhaps in an “action” folder or project folder). Then, when you come back to that task, you can pull out your folder and look at your notes to see where you left off.
Take deep breaths, stretch, and take breaks now and then. Enjoy life. Go outside, and appreciate nature. Keep yourself sane!