Pseudo-secularism and the Communal Violence Bill

We live in terrible times, sixty four years after independence when the nation was divided along religious lines we are still at war within. Communalism has meanwhile morphed from what was traditionally the Hindu-Muslim divide, into what is now the radical Hindu versus every other religious minority divide. I use the term radical Hindu, because that’s what this growing and very potent segment of blinkered right wing Hindu politics has led us to, a state of potential anarchy. 

I came across a web-page the other day where a certain individual proclaimed to the world that apart from the Babri Masjid, Vatican City too was constructed on the remains of a Hindu temple. It was such a far-fetched notion, I laughed, my feelings of irritation and dismay at his diatribe against the Muslim and Christian communities replaced by mirth. One cannot but feel sorry for such people who live in a world that’s unreal. But then they also cannot be dismissed, and I’m sure he’s not the only one harbouring such ridiculous thoughts, there are many others like him, and who like him, spread their delusional and hateful thoughts and ideas like tentacles, encircling other ill-informed and delusional persons. Who then swept up in a frenzy, fuelled by unemployment, dissatisfaction and poverty, perpetrate injustices on others, fanned by politicians who use them to forward their agenda and then leave them to their own and rather dangerous devices. Much like fanatical Islamic extremists who perpetrate acts of frenzied violence in the name of jihad, which has now morphed into a bad word instead of its more wholesome meaning of self-purification and of fighting the “Holy war” within, the war against desire, lust… it is an internal spiritual journey and its true meaning is now lost, amidst the hate and violence it spawns. And how can we forget those extremists amongst the Christians in other parts of the world who perpetrate acts of violence, hatred and bigotry in the name of that greatest messenger of peace. Extremism exists everywhere. 

The current Congress led UPA government meanwhile feigns ignorance, choosing to apply the laws and rules currently in place to curb acts of communal violence on a selective basis, motivated more by vote-bank politics than by a genuine attempt to stamp out all that is dysfunctional in society. The Kandhamal incident in Orissa is evidence enough of the fact that Christians do not constitute a viable vote-bank, except perhaps in Goa, Kerala and some North- Eastern States; everywhere else they may as well be damned. The Communal Violence Bill, 2011, is therefore another half-baked attempt by the government to look at this issue that has gained the status of a national crime. And the BJP/RSS rant that Sonia is Christian and is therefore pushing forward the Communal Violence Bill is akin to referring to Mussolini as god-fearing. Being born in India doesn’t make all Indians Hindu… just as being born in Italy does not make all Italians Catholic or even Christian in their beliefs. As for references to Sonia being a “Vatican spy”, she wasn’t and isn’t Catholic, even if somewhere down the line her family did profess the Christian faith, there is a huge difference there. But why debate on Sonia’s religion when there are a several points on which one can fault the Congress party or even the UPA led government, or for that matter the BJP, or any other political party or politician or anyone for that matter. Surely as a citizen of India, I have the right to stand for high political office, just as I have the right to vote. It should not matter if I am Hindu, Muslim, Christian, Parsi or Jew. I have an unquestionable right. 

Prior to the framing of the Communal Violence Bill, instances of communal violence were dealt with under the provisions of the Indian Penal Code (IPC), all of which find themselves reflected again with the same/similar quantum of punishment as laid down under the IPC, for instance –

S. 153A – Promoting enmity between different groups on grounds of religion, race, place of birth, residence, language, etc., and doing acts prejudicial to maintenance of harmony

S. 153B - Imputations, assertions prejudicial to national integration

S. 295 - Injuring or defiling place of worship with the intent to insult the religion of any class

S. 295A - Deliberate and malicious acts intending to outrage religious feelings of any class by insulting its religion or religious beliefs

S. 296 - Disturbing religious assembly

S. 297 - Trespassing on burial places, etc

S. 298 - Uttering words, etc. with deliberate intent to wound religious feelings of any person

And then there are the more general provisions which may be extended to acts that supplement/compliment acts of communal violence, namely –

S. 141 to S. 147 – which fall under ‘Offences against Public Tranquility’, and include ‘Unlawful assembly’, ‘Rioting', ‘Assaulting or obstructing public servant when suppressing riot, etc.’, among others

In addition, IPC Sections 302 –Murder, 307 – Attempt to Murder, 375 – Rape, 376 – Punishment for Rape and Ss. 322 - Voluntarily causing grievous hurt, 324 - Voluntarily causing hurt by dangerous weapons or means and S. 436 - Mischief by fire or explosive substance with intent to destroy house, etc. also find mention in the Communal Violence Bill, as they do in the IPC.

In addition to the IPC, some of the other laws that deal with communal violence in some form or the other include - The Arms Act, 1959, the Explosives Act, 1884, Prevention of Damage to Public Property Act, 1984, Places of Worship (Special Provisions) Act, 1991 and the Religious Institutions (Prevention of Misuse) Act, 1988, among others.

So now we have the Prevention of Communal and Targeted Violence (Access to Justice and Reparations) Bill, 2011 which was first introduced in Parliament in 2005, before it swung back and forth amidst opposition from various sources, and now the BJP through Arun Jaitley has gone on record terming the Bill anti-Hindu and draconian, while Muslim and Christian leaders too have expressed their reservations on the Bill. Meanwhile civil society represented through a conglomeration of various organisations, notably – the Movement for Peace and Justice, the Bombay Catholic Sabha, EKTA (Committee for Communal Amity), Citizens Initiative for Peace, Association for Protection of Civil Rights, BUILD and the Human Rights Law Network have held several rounds of consultations on the Draft Bill, proposing amendments to the same, which were considered before the June 22, 2011 amendments were made public.

Initially termed as the ‘Communal and Sectarian Violence Bill, 2010” by the National Advisory Committee, some of the key points or ‘guiding principles’ of that version of the Bill included provisions to –

• Broaden the title and applicability of the law to include ‘communal and sectarian violence’
• Propose an independent National Authority to ensure effective compliance with the law, without disturbing the federal structure
• Ensure accountability and criminal liability of public officials for acts of omission and commission, in order to prevent or control communal and sectarian violence, extending timely and adequate rescue, relief and rehabilitation provisions
• Define communal and sectarian violence to cover both isolated incidents as well as mass crimes, against people based on religious, caste, linguistic, regional and other identities.
• Define and include new offences including sexual assault, enforced disappearances, torture, long-lasting social and economic boycott and genocide, among others
• Remove the prior sanction requirement for ‘Hate Speech’ as reflected in Ss. 153A and 153B of the IPC
• Impose a statutory obligation on the government to lay down national standards for victims of communal and sectarian violence - including rescue, relief, compensation, rehabilitation, resettlement, restitution, reparation and as well as recognizing the rights of internally displaced persons
• Make amendments to the CrPC and the Indian Evidence Act in order to meet the ‘extraordinary circumstance’ of communal and sectarian violence to protect victims’ rights
• Ensure that specific provisions for victim-witness rights are made under this law

But as always loopholes abound as do glaring errors of omission, and apart from some of the more obvious ones, for instance, that a ‘Statement of Objects and Reasons’ is missing in the Draft Bill – We wonder if the purpose of the Act, whatever that is, will be achieved in real terms, once it comes into effect.

Meanwhile Section 5 of the Draft Bill states that, “Offences under section 7 to 12 (both inclusive) shall be offences of communal and targeted violence”.

These Sections as explained below elucidate the provisions as laid out under the Draft Bill -

Section 7 – Sexual assault – the provisions of the section cover and bring with the ambit of the term ‘sexual assault’ the following acts perpetrated against a person belonging to a group by virtue of that person’s membership of that group, to include – if the person is a woman – Rape, gang rape, mass rape (i.e. the rape of several women belonging to that group). And if perpetrated against any person, without their consent or against their will, to include - The introduction by a man of his penis or any other body part or an object into the vagina, mouth or anus, of that person, causing harm or hurt to reproductive organs or genital organs of that person, exposing of one’s sexual organs in front of any person, sexual contact of any sort, including the performance of sexual acts for any length of time, removing the persons clothes, partially or fully, or compelling that person to undress himself or herself, partially or fully, in public view or otherwise, or parading that person in undressed state in public view or otherwise, or any other act or conduct that subjects that person to sexual indignity.

The term ‘consent’ is deemed under Explanation 2 of the section to mean – The unequivocal voluntary agreement where the person has by words, gestures, or any form of non-verbal communication, communicated willingness to participate in the act referred to in this section, where “unequivocal voluntary agreement” means willingness given for specific and be limited to the express act consented to under this Section. Explanation 3 goes on to clarify that consent in this section shall be deemed to be free of duress, threat, terror, fear, coercion, undue influence, misrepresentation or mistake of fact.

What was that again…?

“Unequivocal voluntary agreement” and “willingness to participate” – in what… Being sexually assaulted? How ridiculous is that!

[The June 22, 2011 Amendment thankfully sought to redefine the term ‘consent’ with the suggestion that the requirement of the victim having to prove that she/he did not consent to the sexual assault is to be dispensed with, as it is deemed to have been committed under circumstances which can be termed coercive. The amendment also proposed to make other changes to the Section by incorporating into the provision situations where a person belonging to a group is forced to commit sexual assault on a person of the same group by a non-group member, and in addition also proposed the introduction of specific procedures and evidentiary standards for sexual assault perpetrated in the context of communal and targeted violence.]

Section 8 – Hate propaganda – basically rehashes Sec 153A, of the IPC which promotes enmity between different groups by words, written or spoken or by signs etc, on grounds of religion, race, place of birth, residence, language, caste or community, or commits acts prejudicial to the maintenance of harmony on the same grounds as mentioned before etc… and applies it to the provisions of this Act to include – “whoever publishes, communicates or disseminates by words, either spoken or written, or by signs or by visible representation or otherwise acts inciting hatred causing clear and present danger of violence against a group or persons belonging to that group, in general or specifically, or disseminates or broadcasts any information, or publishes or displays any advertisement or notice, that could reasonably be construed to demonstrate an intention to promote or incite hatred or expose or is likely to expose the group or persons belonging to that group to such hatred, is said to be guilty of hate propaganda.”

[The June 22, 2011 Amendment proposed that the section be amended to remove the word ‘present’ from ‘clear and present danger’ as acts of violence may take place well after the initiation of hate propaganda. The amendment also proposed the addition of a proviso to exclude from the definition of ‘hate propaganda’ acts done which seek to promote values of equality and defend the principles enshrined in and fundamental rights guaranteed by the Constitution.]

Section 9 – Organized Communal and Targeted Violence – covers those acts of violence or threats of violence, or acts of intimidation, coercion committed by an individual, either singly or jointly with others, or as part of an association or on behalf of an association or acting under the influence of an association in a widespread or systematic nature, and which is knowingly directed against a group or part of a group, purely on account of their membership of that group. In situations where there is continuing widespread or systematic unlawful activity, the section purports to hold responsible for such activity any public servant who has been delegated with the duty to prevent communal and targeted violence, for his failure to prevent the same.

Section 10 – Aiding financially, materially or in kind for commission of offence under this Act – the section covers anyone who knowingly expends or supplies money or any material or aids in kind to further or support any acts deemed to be an offence under the Act. And such person will be said to be guilty of financially aiding in the commission of that offence.

Section 11 – Offence under the Indian Penal Code, 1860 – covers offences under the IPC as provided in – Schedule II, Parts A or B of the Act, when such offences are committed against any person belonging to a group by virtue of his or her membership to that group. In such instances the offences shall be deemed to be offences of communal and targeted violence and shall be dealt with accordingly.

Section 12 – Torture – This section, aimed at public servants or persons under the control or direction of or with the acquiescence of a public servant – holds them guilty of the offence of inflicting torture if they intentionally inflict pain or suffering, whether mental or physical, on a person belonging to a group by virtue of his or her membership of a group. The offence also includes the causing of grievous hurt or danger to life, limb or health or even sexual assault, for the purposes of obtaining from that person, or from a third person, information, or a confession or for the purposes of punishing that person for an act he or she or a third person committed or is suspected of having committed. The provision also extends to cover acts of intimidation or coercion of such persons or third persons, within the ambit of ‘torture’.

The proviso to the section however excludes pain, hurt or danger which may be caused or inflicted in accordance with law... leaving the provision open to abuse and misuse. After all in most instances of sectarian violence, often one finds the upholders of the law guilty of perpetrating the worst offences or at least being complicit in them.

[As per the June 22, 2011 Amendment the proviso to the above section is to be redrafted and the provisions of the section brought in consonance with the Rajya Sabha’s Select Committee recommendations on the Prevention of Torture Bill]

The amendments as mentioned above in brackets  […] were based on feedback received after placing the Draft Bill in the public domain on May 25, 2011, which were then endorsed by the National Advisory Council (NAC) on June 22, 2011, for legal vetting and drafting by Additional Solicitor General (ASG) Indira Jaising.

Given that the Bill has been dissected and re-dissected by all concerned from the majority and minority communities, with both expressing reservations, some of which are reflected in the amendments proposed to the Bill – it now moves to the next step, and one can well expect heated debates and other exchanges when it finally comes before Parliament.

What therefore is the purpose of this Act? What does it purport to do, in addition to what is already being covered under the IPC?

Nothing, really… Apart from the fact that if adopted by Parliament, the provisions of the Act will permit the center to intervene in cases of communal or targeted violence by invoking Article 355 of the Constitution, which considers it the duty of the union government to declare any case of communal violence as an “internal disturbance” and take appropriate action. 

According to Article 355:

“It shall be the duty of the Union to protect every State against external aggression and internal disturbance and to ensure that the government of every State is carried on in accordance with the provisions of this Constitution.”

So will the provisions of this Bill, when passed, amount to giving the centre arbitrary powers over any state where there is a government of a non-ally in power, in case of any incidence of what may be termed as ‘internal disturbance” wrought by instances viewed as “communal violence”?

Section 99, of the Bill – which deals with ‘Reparation and Restitution’ purports to include, the resettlement of persons or families affected by acts of organised communal and targeted violence in homes, dwellings and into places of livelihood, either in the existing locations or in new locations so as to restore them to the same situation as they were in prior to the acts of violence. This provision seems to be rather utopian, given that years after the anti-Christian violence in Orissa, many are still displaced and without homes. Even in the national capital, many victims of the anti-Sikh riots following Indira Gandhi’s assassination still await compensation, almost twenty-seven years after the event, and with many of them unable to trace the remains or find evidence as to the death of their loved ones, it remains a hopeless task.

The Act also proposes the establishment of a ‘Communal and Targeted Violence Relief and Rehabilitation Fund’, under Section 122 – but just as in the above case the efficacy of such a fund will have to be seen in motion, rather than on paper.

Another point of note can be found in the chapter on ‘Penalties’ (Chapter VIII of the Draft Bill) which largely reflects those as laid down under the IPC, and have not been enhanced, merely expanded on in keeping with the definitions of ‘Offences’ under the Bill as contained in Sections 7 – 12, prompting me to wonder, why not simply amend the IPC to broaden the scope of the offences as detailed under the Communal Violence Bill, with their respective penalties, enhancing them instead of maintaining the status quo, if at all it is to act as a deterrent?

Which brings me to some of the definitions under the Bill, of which, Section 3(c) of the Draft Bill defines; “communal and targeted violence” to mean and include “any act or series of acts, whether spontaneous or planned, resulting in injury or harm to the person and or property, knowingly directed against any person by virtue of his or her membership of any group, which destroys the secular fabric of the nation”.

However what is striking is that the Act fails to define what is meant by the term ‘secular’ and the amendment of June 23^rd has chosen to simply lop off that part of the statement to have the section now read as:

Section 3(c) - “communal and targeted violence” to mean and include - "any act or series of acts, whether spontaneous or planned, resulting in injury or harm to the person and or property, knowingly directed against any person by virtue of his or her membership of any group."

So is India a Hindu nation, and is this secular face we display to the world just a farce? After all the word secular didn’t even exist in the original Constitution as it was when it came into effect on 26^th January 1950, having been passed by the Constituent Assembly on 26^th November 1948. It was an after-thought, added in retrospect twenty-six years later, by the forty-second amendment to the Constitution on 28^th August 1976. Why didn’t our founding fathers think it prudent to include it in the original draft and why did it take forty two amendments for our law-makers to realize that we are a secular nation, or did they take it for granted that we were, in a time when communal hatred was at its peak and when the nation had been torn apart, not so much by the British as by the politics of that time. Right-wingers among the majority community may vilify Gandhi as being the architect of Pakistan as much as Jinnah was, but I stand in defence of that individual who stood alone, against the joint forces of hatred and realised that it would be better to separate what was merely conjoined, two parts with the same heart but with different bodies, than to have the carnage go on. Perhaps it was a short-sighted vision, perhaps he was utopian, and perhaps all his years of fighting the system had left him diminished enough to think that the violence would end.

And then we look at Pakistan and see that they adopted their constitution only in 1956, a short lived document that lasted just 2 years before it was abrogated in 1958 with the promulgation of martial law. It would take two constitutions and a several political heads of State, and a cleaving off of their easterly limb, before Pakistan adopted the Constitution of 1973 which is still in force (with amendments) today, but they did at the very inception give themselves a religious identity, which we did not, choosing not to call ourselves a Hindu nation or at the very least adopt the term secular which has now come to stand for all that is not well within our religio-political makeup.

Section 3 (e) of the Bill defines the term “group” - to mean “a religious or linguistic minority, in any State in the Union of India, or Scheduled Castes and Scheduled Tribes within the meaning of clauses (24) and (25) of Article 366 of the Constitution of India”, and by this definition excludes the majority community, thereby alienating them.  

Section 3 (j) meanwhile defines “victim” to mean, “any person belonging to a group as defined under this Act, who has suffered physical, mental, psychological or monetary harm or harm to his or her property as a result of the commission of any offence under this Act, and includes his or her relatives, legal guardian and legal heirs, wherever appropriate”.

In essence therefore, while the act purports to term anyone who by virtue of the fact that they belong to a religious or linguistic minority, the “victim” of any act of communal violence, it fails to extend the same benefit to members of the religious or linguistic majority, in effect, Hindi speaking, Hindus who may also be targets of communal violence.

Why give the act a religious or linguistic angle I wonder, instead of treating communal violence as just that, violence based on differences of thought, ideology, religion, language, birth, place of residence, or other similar grounds, regardless of majority or minority. And by this Bill we purport to perpetrate just that, entrenching a divide that already runs deep, fanning further the politics of hate and division, and creating grounds for even more senseless acts of violence. And what will happen when the Congress led UPA loses the next general election, or the election after that, will the Bill if enacted be repealed?

So I am compelled to ask, if after all this is just the politics of appeasement once again.

If so the Act should be renamed as the Prevention of Communal and Targeted Violence against Religious & Linguistic Minorities Act, 2011 – then and only then can it be termed fair, else it would be a waste of paper, time and the efforts of thousands of individuals who have worked on an ill-thought out document.

           

Passion and Culpability

The verdict is out on the Neeraj Grover case and Emile Jerome stands convicted. A young man, a naval officer caught in a web of passion and death. It’s murky, something we normally thrive on and love to see on screen, but when it comes to reality, we sudden develop a conscience, and often in our endeavour to seek justice like blood-thirsty vigilantes, we don’t care for the very law we claim to uphold. Rather unrelenting in our moral consciousness, we believe in right and wrong, and slap on the paint, black or white, with no shades of grey. 

Picture this, the victim, Neeraj Grover, ostensibly seeking sexual favours of a young wannabe starlet, and she relents, all in a bid to make it big. Enter the third player, a young, ardent and smitten fiancé, a young naval officer, Emile Jerome, in love and passionate, unrelenting in his ardour, willing to sacrifice all, blinded by want that transforms to need, blurring all lines, and then he apparently kills in a fit of extreme anger, but could it be termed murder? After all Section 300 of the Indian Penal Code which defines ‘Murder’ clearly states intention or mens rea and knowledge that the act will lead to the death of the victim, as pre-requisites to it. 

It is murder therefore, if you intended by your act to kill, as Section 300 of the IPC states: 

Section 300 Murder – Except in the cases hereinafter excepted, culpable homicide is murder, if the act by which the death is caused is done with the intention of causing death, or-

2ndly – If it is done with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused, 
or

3rdly – If it is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death, or

4thly – If the person committing the act knows that it is so imminently dangerous that it must, in all probability, cause death or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid.

Illustrations

(a) A shoots Z with the intention of killing him. Z dies in consequence. A commits murder.

(b) A, knowing that Z is labouring under such a disease that a blow is likely to cause his death, strikes him with the intention of causing bodily injury. Z dies in consequence of the blow. A is guilty of murder, although the blow might not have been sufficient in the ordinary course of nature to cause the death of a person in a sound state of health. But if A, not knowing that Z is labouring under any disease, gives him such a blow as would not in the ordinary course of nature kill a person in a sound state of heath, here A, although he may intend to cause bodily injury, is not guilty of murder, if he did not intend to cause death, or such bodily injury as in the ordinary course of nature would cause death.

(c) A intentionally gives Z a sword-cut or club-wound sufficient to cause the death of a man in the ordinary course of nature. Z dies in consequence. Here, A is guilty of murder, although he may not have intended to cause Z's death.

(d) A without any excuse fires a loaded cannon into a crowd of persons and kills one of them. A is guilty of murder, although he may not have had a premeditated design to kill any particular individual.

Exception I – When culpable homicide is not murder – Culpable homicide is not murder if the offender, whilst deprived of the power of self-control by grave and sudden provocation, causes the death of the person who gave the provocation or causes the death of any other person by mistake or accident.

The above exception is subject to the following provisos:-

First – That the provocation is not sought or voluntarily provoked by the offender as an excuse for killing or doing harm to any person.

Secondly – That the provocation is not given by anything done in obedience to the law, or by a public servant in the lawful exercise of the powers of such public servant.

Thirdly – That the provocation is not given by anything done in the lawful exercise of the right of private defence.

Explanation – Whether the provocation was grave and sudden enough to prevent the offence from amounting to murder is a question of fact.

Illustrations

(a) A, under the influence of passion excited by a provocation given by Z, intentionally kills, Y, Z's child. This is murder, in as much as the provocation was not given by the child, and the death of the child was not caused by accident or misfortune in doing an act caused by the provocation.

(b) Y gives grave and sudden provocation to A. A, on this provocation, fires a pistol at Y, neither intending nor knowing himself to be likely to kill Z, who is near him, but out of sight. A kills Z. Here A has not committed murder, but merely culpable homicide.

(c) A is lawfully arrested by Z, a bailiff. A is excited to sudden and violent passion by the arrest, and kills Z. This murder, inasmuch as the provocation was given by a thing done by a public servant in the exercise of his powers.

(d) A appears as a witness before Z, a Magistrate, Z says that he does not believe a word of A's deposition, and that A has perjured himself. A is moved to sudden passion by these words, and kills Z. This is murder.

(e) A attempts to pull Z's nose, Z, in the exercise of the right of private defence, lays hold of A to prevent him from doing so. A is moved to sudden and violent passion in consequence, and kills Z. This is murder, inasmuch as the provocation was given by a thing done in the exercise of the right of private defence.

(f) Z strikes B. B is by this provocation excited to violent rage. A, a bystander, intending to take advantage of B's rage, and to cause him to kill Z, puts a knife into B's hand for that purpose. B kills Z with the knife. Here B may have committed only culpable homicide, but A is guilty of murder.

Exception 2 – Culpable homicide is not murder if the offender, in the exercise in good faith of the right of private defence of person or property, exceeds the power given to him by law and causes the death of the person against whom he is exercising such right of defence without premeditation, and without any intention of doing more harm than is necessary for the purpose of such defence.

Illustration

 Z attempts to horsewhip A, not in such a manner as to cause grievous hurt to A. A draws out a pistol. Z persists in the assault. A believing in good faith that he can by no other means prevent himself from being horsewhipped, shoots Z dead. A has not committed murder, but only culpable homicide.

Exception 3 – Culpable homicide is not murder if the offender, being a public servant or aiding a public servant acting or the advancement of public justice, exceeds the powers given to him by law, and causes death by doing an act which he, in good faith, believes to be lawful and necessary for the due discharge of his duty as such public servant and without ill-will towards the person whose death is caused.

 Exception 4 – Culpable homicide is not murder if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offenders having taken undue advantage or acted in a cruel or unusual manner.

Explanation – It is immaterial in such cases which party offers the provocation or commits the first assault.

Exception 5 – Culpable homicide is not murder when the person whose death is caused, being above the age of eighteen years, suffers death or takes the risk of death with his own consent.

Illustration

A, by instigation, voluntarily causes, Z, a person under eighteen years of age to commit suicide. Here, on account of Z's youth, he was incapable of giving consent to his own death; A has therefore abetted murder. 

This case cannot but take you back to the K.M. Nanavati case; there are after all a few parallels. Both Emile Jerome and Kawas Manekshaw Nanavati were naval officers, and there was a woman involved, and a third person, a triangle… the fiancé/husband, the women they loved and the men who infringed upon the sanctity of those spaces… the quintessential crime of passion. But that’s where it ends. After all Emile Jerome did not come armed, neither did he go to the house of Neeraj Grover, seeking him out. He came seeking what he thought to be his life, his space and finding it compromised, reacted in a manner that can only be attributed to youthful and perhaps naïve passion. 

In Nanavati’s case the Honorable Justices of the Supreme Court in appeal, viewed the all important aspect of ‘grave and sudden provocation’:

“Is there any standard of a reasonable man for the application of the doctrine of "grave and sudden" provocation? No abstract standard of reasonableness can be laid down. What a reasonable man will do in certain circumstances depends upon the customs, manners, way of life, traditional values etc.; in short, the cultural, social and emotional background of the society to which an accused belongs. In our vast country there are social groups ranging from the lowest to the highest state of civilization. It is neither possible nor desirable to lay down any standard with precision: it is for the court to decide in each case, having regard to the relevant circumstances. It is not necessary in this case to ascertain whether a reasonable man placed in the position of the accused would have lost his self- control momentarily or even temporarily when his wife confessed to him of her illicit intimacy with another, for we are satisfied on the evidence that the accused regained his self-control and killed Ahuja deliberately. 

The Indian law, relevant to the present enquiry, may be stated thus: (1) The test of "grave and sudden" provocation is whether a reasonable man, belonging to the same class of society as the accused, placed in the situation in which the accused was placed would be so provoked as to lose his self-control. (2) In India, words and gestures may also, under certain circumstances, cause grave and sudden provocation to an accused so as to bring his act within the first Exception to s. 300 of the Indian Penal Code. (3) The mental background created by the previous act of the victim may be taken into consideration in ascertaining whether the subsequent act caused grave and sudden provocation for committing the offence. (4) The fatal blow should be clearly traced to the influence of passion arising from that provocation and not after the passion had cooled down by lapse of time, or otherwise giving room and scope for premeditation and calculation. Bearing these principles in mind, let us look at the facts of this case. When Sylvia confessed to her husband that she had illicit intimacy with Ahuja, the latter was not present. We will assume that he had momentarily lost his self-control. But if his version is true-for the purpose of this argument we shall accept that what he has said is true-it shows that he was only thinking of the future of his wife and children and also of asking for an explanation from Ahuja for his conduct. This attitude of the accused clearly indicates that he had not only regained his self-control, but on the other hand, was planning for the future. Then he drove his wife and children to a cinema, left them there, went to his ship, took a revolver on a false pretext, loaded it with six rounds, did some official business there, and drove his car to the office of Ahuja and then to his flat, went straight to the bed-room of Ahuja and shot him dead. Between 1.30 P.M., when he left his house, and 4.20 P.M., when the murder took place, three hours had elapsed, and therefore there was sufficient time for him to regain his self-control, even if he had not regained it earlier. On the other hand, his conduct clearly shows that the murder was a deliberate and calculated one. Even if any conversation took place between the accused and the deceased in the manner described by the accused-though we do not believe that-it does not affect the question, for the accused entered the bed-room of the deceased to shoot him. The mere fact that before the shooting the accused abused the deceased and the abuse provoked an equally abusive reply could not conceivably be a provocation for the murder. We, therefore, hold that the facts of the case do not attract the provisions of Exception 1 to s. 300 of the Indian Penal Code.” 

This however does not apply to the case in hand and in my humble opinion Emile Jerome falls most definitely within the purview of the Exceptions under Section 300, and has therefore been rightfully exonerated by the Hon’ble sessions court judge of the more grevious charge of murder punishable under Section 302. 

But then he is convicted under Section 304 IPC, of culpable homicide, which very simply reads as: 

Section 304 Punishment for culpable homicide not amounting to murder – Whoever commits culpable homicide not amounting to murder shall be punished with [imprisonment for life], or imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine, if the act by which the death is caused is done with the intention of causing death, or of causing such bodily injury as is likely to cause death,

Or with imprisonment of either description for a term which may extend to ten years, or with fine, or with both, if the act is done with the knowledge that it is likely to cause death ,but without any intention to cause death, or to cause such bodily injury as is likely to cause death. 

Section 304 while being clearly defined is also quite complex in its understanding to those who are not acquainted with the IPC. The Section despite being written in free flow is spliced into two distinct parts; the first called Part I, for which the intention must be to cause death or to cause such bodily injury as is likely to cause death. And then there’s Part II, where intention plays no part, but knowledge comes to the fore, In other words the act which causes death should have been accompanied by the knowledge that the act committed would lead to the death of the victim. 

In my humble opinion, Emile Jerome fits neither of these profiles. 

What is a crime of passion after all? 

It is unplanned, without forethought or pre-meditation (this said with due respect to the police who slapped on a 302 IPC to be read with 120B (which lays down the punishment for criminal conspiracy), without the requisite intention or mens rea, without even the knowledge that the act of striking out, even if it is to plunge a kitchen knife through the body of another human being, would lead to death. 

And then the charge included criminal conspiracy under Section 120-B… only based on the fact that he was a possessive young man, who wanted to protect what he thought was his to love and to hold, and to protect with his life if need be. So he came, motivated by love and by anger no doubt, hurt perhaps, but not with intent or desire to harm. And then he sees a naked man in his fiancés house… and yes hell breaks loose, and as much as I feel sorry for the Grovers, I do feel that Emile Jerome was nothing more than a victim of circumstance. 

The IPC itself very clearly, in its ‘Comments’ on Section 120-B lays down the ingredients of a criminal conspiracy to be:

(a) an object to be accomplished,

(b) a plan or scheme embodying means to accomplish that object,

(c) an agreement or understanding between two or more of the accused persons whereby they become definitely committed to co-operate for the accomplishment of the object by the means embodied in the agreement, or by any effectual means,

(d) in the jurisdiction where the statute required an overt act 

It rounds up the ‘Comment’ by quoting from the case of:

Hira Lal Hari Lal Bhagwati v CBI, 2003 SCC (Cri) 1121 

“To bring home the charge of conspiracy within the ambit of Section 120-B, it is necessary to establish that there was an agreement between the parties for doing an unlawful act…” 

The Court very rightly in determining this case therefore did not consider the criminal conspiracy theory… and I hail the Indian judiciary for their clarity of thought. 

But Emile Jerome is just a young naval officer, undecorated, living in a nation at peace with the world, and where his services can be dispensed with. He’s no Commander, no stripes on his chest, no alphabets following his name, and therefore no gubernatorial pardon awaits him… neither does a life on foreign shores where he can bury the ghosts of his past and move on. 

Here’s a kid who having committed a dastardly but unplanned act, panicked at the very least, and tried to get rid of what he had done. At best he can be charged with destruction of evidence, which the IPC states as: 

Section 201 Causing disappearance of evidence of offence, or giving false information to screen offender – Whoever, knowing or having reason to believe that an offence has been committed, causes any evidence of the commission of that offence to disappear, with the intention of screening the offender from legal punishment, or with that intention gives any information respecting the offence which he knows or believes to be false,

If a capital offence – shall, if the offence which he knows or believes to have been committed is punishable with death, be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine;

If punishable with imprisonment for life – and if the offence is punishable with [imprisonment for life], or with imprisonment which may extend to ten years, shall be punished with imprisonment of either description for a term which may extend to three years, and shall also be liable to fine;

If punishable with less than ten years' imprisonment – And if the offence is punishable with imprisonment for any term not extending to ten years, shall be punished with imprisonment of the description provided for the offence, for a term which may extend to one-fourth part of the longest term of the imprisonment provided for the offence, or with fine, or with both.

Illustration

A, knowing that B has murdered Z, assists B to hide the body with the intention of screening B from punishment. A is liable to imprisonment of either description for seven years, and also to fine. 

So yes, convict him if you must on this charge. At the most seven years with time served, and good behaviour… But with a dishonourable naval discharge and a shattered life hanging above him, I think living itself would seem worse than a sentence of death. 

‘If this is not murder, then where’s my son?’ screams the headlines of the Mumbai Mirror dated Friday, July 1, 2011. 

In Nanavati’s time, during the last ever jury trial that India witnessed, relatively free from the incriminating third eye of the media, those honorable citizens had held the Commander ‘not guilty’, even though his act was deliberate, motivated by what was viewed by the jury as the deceitful and dishonorable intentions of the victim, and which caused the sessions judge at the time, the Hon'ble Mr. Justice Ratilal Bhaichand Mehta to declare the verdict as perverse and refer it to the High Court. 

I would like to say that I am sorry that Neeraj Grover died, and that his life was cut short. I empathise with his parents and do not expect them to understand the law or even be rational about the judgement, but every act that results in death does not equal murder, nor does it warrant taking the life of the person who perpetrated the act. We live in a world that’s thankfully governed by law, howsoever unpalatable it may seem when it tilts the balance against us. But that’s what sets us apart, that’s what makes us civil, that’s what prevents us from descending into anarchy. Vengeance, howsoever wrought, whether illegal or sanctioned by the state is a horrible thing indeed, deliberate, pre- meditated and with intent and knowledge, all the things we harp against. 

If it were up to me Emile Jerome would get three to seven… with time served. 

After all there was no intent… no knowledge. And he has paid the price for his foolhardiness in full measure.