Monday, June 22, 2015

QUI PECAT EMBRIUS, LUAT SOBRIUS: He who sins when drunk shall be punished when sober.

Law is not an insensible collection of rules, but is an alive product of a living and raw society. Hence there is a very close connection between law and morality. The law exists to encourage morality, to safeguard those conditions which make the moral life possible, and thus to facilitate men to lead sober lives. The average man regards law as justice systemised and justice itself as a mass of ethical principle. The positive law can be perceived as a code of rules matching with the code of moral laws. Thus when someone takes the life of another regardless of intent or other minutiae surrounding the details, it is a crime and deserves harsh punishment.
The Community against Drunken Driving (CADD) said nearly 70 percent of all fatalities are due to drunken driving. Despite prosecution of drunken driving have increased by about seven times in Delhi and sixteen times in Mumbai since 2001, there has been no corresponding decrease in accidents and fatalities.[1]  Statistics from 2011 showed that 70 percent of 1.34 lakh road accidents fatalities in India were due to drunken driving.[2] The Indian state may make many laws to prevent such crime, however none of this means much unless there are speedy trials and moreover the fear of punishment in people's mind  if they do not act within the parameters of the law.  Fairness and speed are equally important in the administration of justice. However, judicial delays in India are endemic which needs to change.
It took 13 years for the verdict of FIR No. 326 which was registered at Bandra Police Station, after the solemn September dawn that saw one pavement dweller killed and four others maimed by the speeding car of the accused, actor Salman Khan, who under the influence of Alcohol crushed them in their sleep. After series of trials that witnessed melodrama, numerous changes of venues, and demise of witnesses, arguments finally concluded in April 2015. The actor has been found guilty of the charges framed under Sections 304(Part II), 279,337,338, and 429 of Indian Penal Code, 1860 read with Sections 134,187,181 and 185 of the Motor Vehicles Act, 1988.[3]  Indeed, for India, this verdict inspires optimism. It is an astounding success for the common man, challenging the meaning of justice in India as a service for sale to the highest bidder.  Even if the sentence is shortened in the higher courts or whatever the outcome, the verdict is an obvious message to the elite class of India that they are not above the law.  
In 2010, 27 year old Nooriya Yusuf Haweliwala a beautician who lived in Colaba rammed her car into a motorbike driver and a policeman at a checkpoint, killing both. [4] She was driving under influence.  Booked for culpable homicide not amounting to murder and rash and negligent driving. She finally got a sentence of five years simple imprisonment and a fine of Rs 5 lacs in 2012.  Of the five years jail term, she spent four months in jail after which she was released on bail. [5] Isn't it the need of the hour to re-examine laws and bring necessary changes to have a deterrent effect to prevent crime in the general population.  A states punishment for offenders must serve as an example for others who have not yet participated in criminal events. The death of an innocent person in a drunken driving case should not only be construed as an act of negligence but also as culpable homicide not amounting to murder with an imprisonment of not less than 14 years. This deterrence is the only way to make people aware of the horrors of official sanctions thus putting them off committing crimes.
Only when we thought that people learn from others mistakes, yet another profoundly tragic and disturbing incident occurred on June 8th 2015, where a corporate lawyer Janhavi Gadkar allegedly killed two innocent victims in a taxi while she was driving her Audi drunkenly down the wrong side of a Mumbai highway. Indeed, the death of the sober who have done nothing wrong is tragic in every drink driving case and hence if the events in the Gadkar case happened as they have been alleged, there undoubtedly appears to be lawful and ethical responsibility of the law to take its appropriate path. The defense lawyers are trying their best to bring her case within the preview of negligent driving and not culpable homicide. If that happens it would be a shame.
Assuming justice always takes its appropriate path, should it rest after rightly convicting the delinquents? Can this be the one and only measurement to claim success in running a country efficiently?  Shouldn't prevention of crime be the priority rather than punishment ofcrime. Moreover, the real problem will remain unsolved and more lives will continue to be tragically lost unless our laws and their implementation are stringent, efficient, effective and above all extremely prompt (justice delayed is justice denied). Our laws need to instil the deterrent effect amongst the offenders and society in general.
Further In a country notoriously slow to execute change, an overnight transformation is not even an option but,  it is not impossible to discourage and prevent crime by establishing appropriate systems, procedures, protocols and reducing or eliminating such possibilities which could lead to an offence. The mismatch between existence of good laws and their actual implementation is self explanatory on state capacity in India and it is high time to bring revolution.

[2] By Kian Ganz Saturday, 13 June 2015, 23:05
[4] Mumbai, Sun Jan 31 2010, 09:12 hrs
[5] by Rajyasree Sen  Jun 13, 2015 08:23 IST

Thursday, June 11, 2015

In soup - Noodles or Law or People

Food is anything which when consumed provides nutrition and sustains growth. The ability to eat and the delight of eating are important aspects of good quality of life. In short, “being able to eat what I want, when I want” makes us feel good.  Having said that, Multi National Corporations have an answerability of a high order to manufacture good quality packaged food and it is only fair that if they fail to live up to their responsibility , they face punitive action.

Nestlé's recall of all Maggi variants is the biggest ever recall of any food item in India[1]. Despite claiming the brand is safe, the Swiss MNC failed to convince the government which insisted it won't compromise on public health. The Food Safety and Drug Administration orders to Nestle to recall batches of Maggie noodles across the country, for containing dangerous levels of Monosodium Glutamate (MSG) and lead.

With the existing ban on Maggie, the bigger question is can a Multi-National Corporation bypass the laws of the nation and feed poison to the people?  Can this be called Food fraud with absolute disregard to human life? Can a company make profits in our country, leave the citizens ailing and then act ignorant?  Is it the deficient and bungling Laws of our nation or its non implementation which is why India is known to have the most unhygienic food in the world? Moreover, the fly in the ointment, do the people of our nation lack courageous anarchy?

The act of defrauding buyers for economic gain has vexed the nation since very long. In 2003, Cadbury bars were found with worms in Mumbai[2]. The company disagreed of any infestation at manufacturing stage but stopped advertising. Months later it came out with new packaging and aggressive advertising and the sales in India bounced back. Similarly,  In 1996, the Indian government banned the combination of the drug Analgin with other drugs. Though other countries like the United States of America, France and Australia continued with their ban, Analgin to this day, continues to be in circulation.[3] Among the long list of banned medicines outside India include commonly used drugs like Novalgin, D’cold, Vicks Action-500, Enteroquinal, Furoxone and Lomofen (anti-diarrheal), Nimulid, Analgin (pain killer), Ciza and Syspride, (acidity and constipation), Nimesulide (painkiller) and Buclizine (appetite stimulant), all of them are still being sold in Indian market.[4] Then why is there a hue and cry about Maggi which has been a staple food for more than 20 years. Moreover, the results of tests conducted by various Food and Drug Administration (FDAs) and Food Safety and Standards Authority of India (FSSAI) on Maggi have raised more questions as the same product tested in different states has provided varying results of the components present in it.

Can the citizens of India trust Indian standards of checking food, beverages etc? Although we have The Food Safety and Drug Administration and diverse laws under which legal action can be taken against companies for food fraud such as Prevention of Food Adulteration Act, 1954, Drugs and Cosmetics Act, 1940 and Bureau of Indian Standards Act, 1986 but if we see from the perspective of public health, talking of food safety becomes effectively meaningless. In a country where basic hygiene is a task, where 40 per cent of fruits and vegetables get destroyed before they reach a consumer[5], where 21 million tonnes of wheat gets spoilt every year, where the Municipality water is contaminated with high amount of lead, where 68% of milk being supplied across India do not conform to standards set by Food Safety and Standards Authority of India and more than 46% of the milk consumed by citizens is below the standards set by the Food and Drug Administration (FDA), debating over health hazards of Maggi would mean avoiding the real issue.[6] Why not reach to the bottom of the problem? What we need is a mass spectrometry in food quality control. 

So can we say that the laws have failed miserably? Laws are meant to be formulated and implemented well to drive a society in an order. Our food laws are suited for the nation's circumstances and the Indian standards of checking food, beverages are excellent however the laws needs to be more clearer and unambiguous. But, despite all the faultless laws applied in the country, lack of the scientific or technical staff necessary for food analysis, sampling, and efficient inspection cannot happen here. It is believed that the machinery lacks manpower to monitor food safety countrywide. It is also believed the monitoring machinery is sometimes compromised, devious operators getting away with violation[7].
The deputy secretary general of Federation of Indian Chambers of Commerce and Industry (FICCI) stated that labelling on packaged food needs to be clear.  It shouldn't only be responsive and responsible but also readable. These norms need to undergo change and full disclosure is certainly necessary. The Food Safety and Standards Authority of India (FSSAI) have worked out strategies to carry out the massive task to assess the real extent of the hazard and to come out with policy interventions to curb adulteration and contamination. 

The regulator is likely to come out with a guideline for state agencies on testing samples within a week. The state regulators have standards for packed food items. It is the manufacturers responsibility to ensure that products are safe for consumption. Manufacturers need to apply for approval with a certificate of analysis from approved test agencies laboratories and based on the report, the regulator provides product approval.  Now, they may come out with a norm that every manufacturer will have to take their products to laboratories every 6 months and submit test reports . Lastly, in order to endorse nutritionally sufficient diets in the country, the National Institute of Nutrition (NIN) has revised its dietary guidelines for Indian people, which are meant to be useful and based on existing situation in the food industry.

The nation’s goodwill and people’s health and safety is in their own hands. The very worldview that is keeping people obliged to a corrupt, unhealthy, indefensible, unmerited systems of our nation, is precisely the worldview that the majority of people are clinging to. The people of our nation must accept responsibility and understand that every step toward the aim of justice requires sacrifice, distress, and great effort; the assiduous exertions and avid concern of committed individuals will uproot this menace.

There is no doubt that companies, consumer and Government of India is fighting against food fraud and they are getting success in plummeting the business through awareness program, packaging, strict law against devious manufactures but considering the level of corruption, lack of political will, lack of customer awareness and poor enforcement of law, the war is far from over.

[1] Dipak K Dash, TNN | Jun 6, 2015, 03.29AM IST
[2] Seema Kamdar, TNN | Oct 14, 2003, 02.53AM IST
[5] Last updated on: June 10, 2015 11:49 IST
[6] Wednesday, 18 March 2015 - 7:21pm IST
[7] TNN | Jun 6, 2015, 03.32AM IST

Monday, June 1, 2015

Interface between Life and Law- Challenges confronting family court

Justice is a combination of various factors; enactment of laws receptive to the changing needs of time, their successful enforcement, practical interpretations and application so as to fill up any void that is left and not taken care of by statutory enactment.

The journey is incomplete unless an attempt is made to explore the interface between life and law, between meta-narratives of justice and the secluded experiences of individual women who venture out to claim their rights.  In this interface, the mundane and ordinariness of life gets intermingled with high-ceilinged jurisprudential concepts and gets transformed into a legal narrative.

The manner in which women negotiate their clams and entitlements within the realm of law and the manner in which the smoothness of women's life experiences are fitted into the rigid structures of court, statutes and sections is indeed an indicator for testing our notion of law and justice.

A call for a Humanitarian Approach to Dispute Resolution: The judiciary has time and again stressed that technicalities cannot be allowed to prevail upon considerable interest of justice.  Several high courts and Supreme Court has addressed serious concern that since the Act mandates a compassionate approach towards dispute resolution, courts ought not be very technical and rigid in their approach.  It has been held that since it is a valuable legislation aimed at protecting the rights of women and children, family court must adopt a compassionate approach while adjudicating family matters.

Difficulties in proceedings under Chapter IX of Cr. PC: Judges have expressed their views that there are more delays in the family courts than there were in Magistrate's courts in proceedings for maintenance under Section 125, Cr.PC.  According to them, the additional procedural requirements such as mandatory counselling prescribed under the Family Courts Act cause further delays and defeat the very purpose of transferring cases from the magistrate's courts to the family courts. It is mandatory to go for counselling before the case is heard even for interim relief. Without report from counsellors, the case does not proceed in court. Further, it is also mandatory to file an application for permission for legal representation.  This increases paper work and adds to the cost of litigation.

Domestic Violence Act: The purpose of family courts is defeated after the enactment of the Domestic Violence Act, where jurisdiction is awarded to magistrate's courts for maintenance under the Act instead of filing proceedings for maintenance in the family courts, as it provides a speedier alternative.

Personal appearance of the parties: Since family disputes concern rights within personal relationships, it is mandatory for the parties to appear in person.  Since representation by lawyers is not a matter of right, it is the presence of the parties that is of primary concern.  This causes a great deal of hardship to litigants who may not be able to present themselves on each court date.

Backlog: Speedy settlement is only an aspiration and not a reality.  Due to huge backlog of cases, sometimes the matters which are listed are not even taken up for hearing.

In conclusion, it can be assumed that an overnight change in law is not possible but guaranteeing that the needy do not get a raw deal is something which can be taken care of. Undoubtedly, the courts protect women against injustice and go beyond legality to help them, yet, all law is not justice nor is all justice law alone. There have been instances where strict senseless application of law has lead to injustice and times where justice has prevailed without law.