Dominique Strauss-Kahn and the TISS 'rape'

US prosecutors are about to drop charges against former IMF head Dominique Strauss-Kahn after the accuser's story began falling apart. Seeing no way to a successful trial, New York's District Attorney is cutting his losses.
While it is legitimate to ask if DSK should have been arrested in such haste in the first place, at least he was given bail fairly soon by a judge; and freed about six weeks after the incident. The situation's very different in India.
The same day as the DSK prosecution fell apart, Bombay's High Court rejected the state's plea to appeal a lower court judgement in the TISS rape case. Here's the gist of that case: an American student doing a course at the Tata Institute of Social Sciences (TISS) was persuaded to get drunk in a pub and then join six young men in a flat in Andheri. According to her, she felt woozy after entering the flat, fell asleep and woke to find her clothes undone and two of the guys sleeping next to her. Before dropping her to her hostel, the two bought a morning-after pill and asked her to consume it. She concluded her drink had been spiked, and the six had gang raped her while she slept. This even though:
1) She didn't actually recall any intercourse.
2) Four of the boys hadn't so much as touched her before she fell into that drugged sleep.
3) One of them left the house after letting his five friends in.

Forensic evidence showed no sign of any sexual intercourse having taken place. There was no trace of any date-rape drug in the accuser's urine sample, just some cannabis. It all came down to what the girl inferred had happened while she was supposedly asleep.

On the basis of that inference, six boys were charged under India's super-strict rape law and put away for months without bail in a jail where living conditions are sub-human.

The incident occurred in April 2009. The accused were acquitted in October 2010, which is very quick by Indian standards. What is unusual about last week's High Court judgement is that the judges didn't even admit the state's appeal against the order. The evidence had to have been dreadfully weak for a High Court to decline to hear an appeal.

Here's the clincher from the lower court's verdict: The woman said she was drugged and asleep from about 2 am to 10 am. Yet, her phone records showed she had made twelve calls to two friends in that period, and exchanged messages with them all the while. The prosecution apparently had no response to this glaring inconsistency.
"The victim also deposed that she was unconscious between 2 am and 10 am of April 12, 2009, but the prosecution has offered no concrete explanation for the 12 calls that were made from her mobile phone to that of her two friends - Ahmed Mitha and Rishabh Choksi - during those hours.
Her phone records show that the calls lasted for around two minutes and also several messages were exchanged. The defence harped on this point to establish that she was not unconscious during this period - when she was allegedly raped - and raised doubts over her testimony's veracity."

So here's the deal. Phone records are easy to get; the police will have had them at most within a week of the girl's complaint. If these records demolished the complainant's basic story, why did the police continue with the prosecution? It's as if the Indian police no longer have the right to conclude that any accused are innocent. On the other hand, they appear to suffer no adverse consequences if cases are dismissed in court. The New York DA's career would have gone down the drain if he launched a high-profile trial with a zero-credibility witness. Indian prosecutors obviously face no threat to their careers in proceeding with unwinnable trials.

Shouldn't it be obligatory for police to reveal whether the girl spoke with friends repeatedly on that night or not? This is a question of fact, not opinion, and the police have access to the answer. We appear to have built a system where cops leak whatever information and speculation suits their case, but have no obligation to make the facts of a case public when the accused are innocent.

Contempt of Court

If there's one good thing to come out of the absurd verdict in the trial of Binayak Sen, it is the overthrow of the idea that decisions of courts are beyond criticism. In the past, the threat of being hauled up for contempt restricted public contestation of judgements. This self-censorship has been relaxed in recent years, and appears to have disappeared entirely after the Binayak Sen verdict, which has been called 'shocking' in an editorial of the Hindu, and a 'kangaroo trial' and 'a farce' by members of the National Advisory Council headed by Sonia Gandhi. Today's Times of India carries two articles critical of the way the case proceeded and highlights the flimsiness of evidence.
Essentially, one of India's most distinguished public health practitioners and human rights activists was held without bail for months and has now been sentenced to life in jail because he supposedly served as a conduit between an imprisoned Left wing extremist leader and other militants. The proof of this were letters recovered, not from Dr.Sen himself, but from a businessman who first said he was given the material by Dr.Sen and then retracted the statement. The place where the letters were recovered was mentioned as 'Station Road' in the police report. This was later changed to a completely different location, namely 'Mahindra Hotel'. The court accepted that a typing error led to the police putting down 'Station Road' instead of 'Mahindra Hotel'.
The police, after going through Binayak Sen's home and computer, came up with proof of his sympathy with terrorists in the form of pamphlets and books about Naxalism. Well, if that's evidence, then they could lock me up as a Maoist militant, since I have similar material lying about in my house. There was also an email sent by Dr.Sen's wife to somebody in the ISI; that was the Indian Social Institute, not Pakistan's Inter Services Intelligence, but the police were satisfied the ISI label meant the Sens were colluding with Pakistan.
The case sheds light on the working of the whole judicial system in India. If a trial in the world's spotlight, during which two dozen Nobel laureates as well as human rights organisations like Amnesty International have spoken out on the defendant's behalf, becomes such a grotesque travesty of justice, imagine what it's like for the poor of Chattisgarh and other regions. What chance do they have against a combination of harsh laws, merciless police and pliant judges? None. And what happens when large sections of the population feel they have no recourse within the legal framework? They decide to work outside it.
I'm certain the verdict will be overturned in a higher court and Binayak Sen will eventually be acquitted. But he will have spent years in custody by then, and it will be wrong to suggest, the day he is set free, that justice has finally been done.

UPDATE, December 28: Rajinder Sachar, the former Chief Justice of the Delhi High Court, has called the Binayak Sen judgement "nonsensical", and said he was ashamed to belong to a judicial system that delivered such a '"ridiculous judgement". I cannot recall any previous Indian verdict being described in such scathing terms by a former judge.

A matter of conviction

One problem with India's political and legal systems is that no top leader is ever convicted.
One problem with Pakistan's political and legal systems is that all top leaders are convicted.

An accountability law

The MMRDA has revoked the Adarsh society's occupation certificate, and the society has replied that it was built after obtaining all required permissions, and will go to court against the revocation. The episode follows a common pattern: permits are provided by corrupt officials in contravention of norms; at some point, the issue becomes public knowledge thanks to activists and investigative reporters; then, the administration reverses the permission with a stroke of the pen, harming a number of people who were not part of any underhand deals.
I recall a few years ago, most taxis in the city had switched to horrid smoke-spewing three cylinder engines; after a PIL, the administration decided all these retrofitted engines were illegal and would have to be junked. Many taxi drivers who had followed a trend presuming it was legal were saddled with unbearable costs. The permits they had received were suddenly useless. The people who issued those permits suffered no adverse consequences.
Should there not be an accountability mechanism in place for such incidents? Perhaps we need a law stating that permits once given cannot be cancelled UNLESS action is taken against officials responsible for handing out those permissions in the first place. And the action against bureaucrats can't be mere suspension, for many of the culprits retire to lives of luxury before their misdeeds come to light.
If there are any lawyers reading this, I'd like to know if it's theoretically possible to develop a provision of this sort. Could we have a requirement, for example, that an FIR be filed simultaneously with any such revocation of permit?

Ayodhya question

Here's my Ayodhya question for the day: could we imagine a verdict dividing the land in the fashion it has been, had the mosque still been standing? If the structure was intact, this verdict would necessitate its demolition, and it's hard to see a court ordering such a thing. That's probably why judges dithered for so long in the first place.
Which means the demolition of the mosque, an act in direct contravention of Supreme Court orders, led to the legal recognition of the claims of those who supported demolishing the mosque to begin with.

The Ayodhya Verdict

There are many absurdities that have piled up in the years since the Ayodhya cases began to be heard decades ago, so it is hardly surprising the verdict is itself a hodgepodge.
I am particularly taken by Justice Dharam Veer Sharma's summation of the matter.
The way I see it, there are four issues that can be enumerated in descending order of certitude:
1) We can be absolutely sure a mosque existed at the spot for centuries.
2) We can be fairly certain the mosque was built on the order of Emperor Babur's general Mir Baqi around 1528.
3) We have strongly divided views on whether the mosque was built after demolishing a temple.
4) We have no way at all of proving the spot is the birthplace of Lord Rama. What archeological evidence we have suggests that the present site of Ayodhya was not settled at the time when Rama is supposed to have been born.

In Justice Sharma's 'issues for briefing' the order of certitude I have outlined is reversed. In his view:

1) The disputed site is the birthplace of Lord Ram.
2) The mosque on it was constructed after demolishing a temple.
3) The year of the mosque's construction is uncertain (the verdict says the plaintiffs have failed to prove it was built by Mir Baqi or Babur).
4) It cannot be treated as a mosque at all, since it "came into existence against the tenets of Islam".

I feel I've travelled through the looking glass.

And now, onto the Supreme Court, and a few more years of the same arguments.

A reason to cheer?

Today's Mumbai Mirror leads with a story about public prosecutor Ujjwal Nikam's driver being transferred after showing up in a suit instead of his uniform on the day Ajmal Kasab was sentenced to death.
Forget the driver for a second, here's my question: why are people offering bouquets to the prosecutor? As far as Kasab himself was concerned, I have never heard of a more open and shut case in my life. The guy was caught on CCTV cameras shooting at people, clicked by a news photographer up close, and seen by over a dozen people who lived to testify about his actions. Plus he was captured quite literally red-handed at the end of his trail of murder. It would have taken a feat of incompetence beyond even the capacity of our police force to botch that argument.
There were, however, two persons charged with laying the groundwork for the terror attack who were tried along with Kasab. Both these gentlemen, Fahim Ansari and Sabahuddin Ahmed, were acquitted by judge Tahaliyani, who made deeply critical remarks about the investigation.
The response to the performance of Nikam and the policemen who briefed him is akin to cheering our cricket team for its showing in the T20 World Cup. It's true we lost to Australia, West Indies and Sri Lanka, but we did beat Afghanistan.

The spy ring that never was

Today, an armed forces tribunal will begin hearing a 31 year old case, known as the Samba spy scandal. Tomorrow might have been a more appropriate day to start, because the case reads like a horrific April Fool's joke. The man pictured above, Sarwann Dass, a gunner in an artillery unit, was tempted into spying for Pakistan in the early 1970s. He and another low ranking spy, Aya Singh, were arrested in 1978, and quickly confessed before officers of the civilian Intelligence Bureau. After this, they were handed over to Military Intelligence. Somebody in MI decided they were part of a more widespread conspiracy, and tortured the two men to discover who their superiors in the Indian forces were.
Soon enough, Sarwann Dass provided a couple of names, and then more. Those he implicated were arrested and themselves tortured, and accused other fellow officers and jawans. Nobody knows how many serving men were arrested from their base in Samba in Jammu between August 1978 and February 1979, but the figure is certainly over 50 and perhaps as high as one hundred.
A few of these men, while admitting their guilt under duress, said things that could be factually disproved. For example, one told the interrogators he was with his Pakistani handler when he was, in fact, attending an official function. They hoped these discrepancies would help absolve them when their case came up for hearing. It was a false hope. The court martial paid little heed to hard evidence and went entirely by the often impossible stories that had been made up by the defendants in order to get the pain and humiliation to cease.
The two real spies got away with a few months in jail, earning their full salary all the time. Some of the innocent were sentenced to between seven and 14 years in prison. Others faced summary discharge from service.
As the media gradually got to the bottom of the issue, families of those imprisoned lobbied for their release and members of the civilian intelligence apparatus questioned the army's conclusions, pressure mounted on the legal system to try the case in a more even-handed manner. In 1994, Sarwann Dass admitted in an affidavit that he had made up everything he said about the spy ring. In 2000, the Delhi High Court overturned the verdict of the general court martial. And now, over three decades later, the army is readying to make paltry amends.
The one thing that stands out for me in this episode is the effect of torture. The Samba case provides the most effective argument against the use of harsh violence in investigations. Yes, such methods might help you land a few criminals or even a terrorist or two. Yes, beating up suspects may occasionally lead you to incriminating evidence, which then can form the basis of a legal case. More often than not, though, torture transports investigators to the land of red herrings, wild goose chases and witch hunts. All detainees break, sooner or later, even hardened army men, and begin saying whatever they imagine will please the investigators
When anybody suggests it is worth torturing enemies of the state in the interest of national security, remember Havaldar Ram Swarup, who died in custody with thirty-nine injuries on his body; Captain R S Rathaur, who had needles placed under his fingers, a metal rod inserted in his rectum, his hairs pulled out one by one, who was dragged around his cell with a rope tied to his testicles; remember Major Ajwani, who refused to admit the confession of a manifestly broken jawan, and was himself arrested as a spy and sacked.
The officers from Military Intelligence who were in charge of the investigation, Brigadier Grewal, Lt. Colonel Madan, Major Jolly and Captain Sudhir Talwar -- the latter two personally overseeing and participating in the brutality -- were promoted and retired with all their privileges intact. I hope the army tribunal admits the truth and censures them in some form while they are still alive.